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THE AMEKICAN COMMONWEALTH 



THE 



.MEKICAN COMMONWEALTH 






BY 



JAMES BRYCE, 

AUTHOR OF 'THE HOLY ROMAN EMPIRE' 
M.P. FOR ABERDEEN 



IN THREE VOLUMES 
VOL. I 

The National Government 

J 



ionlion 

MACMILLAN AND CO. 

AND NEW YORK 
1888 



All righU reserved 



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685502 



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• • 



• • • • • 



%o mv Sfutrib0 and CoHeag:ues( 

ALBERT VENN DICEY 
THOMAS ERSKINE HOLLAND 



PREFACE 

As the introductory chapter of this work contains such 
explanations as seem needed of its scope and plan, 
the Author has little to do in this place except express 
his thanks to the numerous friends who have helped 
him with facts, opinions, and criticisms, or by the gift 
of bot)ks or pamphlets. Among these he is especially 
indebted to the Hon. Thomas M. Cooley, now Chairman 
of the Inter-State Commerce Commission in Washington ; 
Mr. James B. Thayer of the Harvard Law School, 
Cambridge, Mass.; Hon. Seth Low, formerly Mayor of 
Brooklyn ; Mr. Theodore Roosevelt of New York ; Mr. G. 
Bradford of Cambridge, Mass. ; and Mr. Theodore Bacon 
of Rochester, N.Y.; by one or other of whom the greater 
part of the proofs of these volumes have been read. He 
has also received valuable aid from Mr. Justice Holmes 
of the Supreme Court of Massachusetts ; Mr. Theodore 
Dwight, late Librarian of the State Department at 
Washington ; Mr. H. Villard of New York ; Dr. Albert 
Shaw of Minneapolis ; Mr. Jesse Macy of Grinnell, la. ; 
Mr. §imeon Baldwin and Dr. George P. Fisher of New- 
haven, Conn.: Mr. Henry C. Lea of Philadelphia; Col. 



X PREFACE 

T. W. Higginson of Cambridge, Mass. ; Mr. BemardjS 
Moses of Berkeley, Cal. ; Mr. A. B. Houghton of Com- 
ing, N.Y. ; Mr. John Hay of Washington ; Mr. Henry 
Hitchcock of St. Louis, Mo. ; President James B. Angell 
of Anil Arbor, Mich. ; Hon. Andrew D. White of Syra- 
cuse, N.Y. ; Mr. Frank J. Goodnow of New York ; Dr. 
Atherton of the State College, Pennsylvania ; and the 
U.S. Bureau of Education. No one of these gentlemen 
is, however, responsible for any of the facts stated or 
views expressed in the book. 

The Author is further indebted to Mr. Low and Mr. 
Goodnow for two chapters which they have written, and 
which contain, as he believes, matter of much interest 
relating to municipal government and politics. 

He gladly takes this opportunity of thanking for 
their aid and counsel four English friends : Mr. Henry 
Sidgwick, who has read most of the proofs with great 
care and made valuable suggestions upon them; the 
Eev. Stopford A. Brooke, whose literary criticisms have 
been very helpful; Mr. Albert V. Dicey, and Mr. W. 
Robertson Smith. 

He is aware that, notwithstanding the assistance 
rendered by friends in America, he must have fallen into 
not a few errors, and without asking to be excused for 
these, he desires to plead in extenuation that the book 
has been written under the constant pressure of public 
duties as well as of other private work, and that the 
difficulty of obtaining in Europe correct information 
regarding the constitutions and laws of American States 
and the rules of party organizations is very great. 



PREFACE xi 



When the book was begun, it was intended to con- 
tain a study of the more salient social and intellectual 
phenomena of contemporary America, together with 
descriptions of the scenery and the aspects of nature and 
human nature in the West, all of whose States and 
Territories the Author has visited. But as the work 
advanced, he found that to carry out this plan it would 
be necessary either unduly to curtail the account of the 
government and politics of the United States, or else to 
extend the book to a still greater length than that which, 
much to his regret, it has now reached. He therefore 
reluctantly abandoned the hope of describing in these 
volumes the scenery and life of the West. As regards 
the non-political topics which were to have been dealt 
with, he has selected for discussion in the concluding 
chapters those of them which either were comparatively 
unfamiliar to European readers, or seemed specially 
calculated to throw light on the political life of the 
country, and to complete the picture which he has 
sought to draw of the American Commonwealth as a 
whole. 

Oaoh&r 22, 1888. 



CONTENTS 

VOL. I. 

PAOE 

List of Presidents xxix 

Area, Population, and Date of Admission of the 

States ...... xxx 

Dates of some Kemarkable Events in the History 
of the North American Colonies and United 
States ...... xxxii 

CHAPTEK I 
Introductory ..... l 



PART I — The National Government 

CHAPTEK n 
The Nation and the States 16 

CHAPTER HI 
The Origin of the Constitution 22 

CHAPTER IV 
Nature of the Federal Government 39 



xiv CONTENTS 



X^ CHAPTER V 



PAGE 



The President 47 

y CHAPTER VI 
Presidential Powers and Duties 67 

)( CHAPTER Vn 
Observations on the Presidency 89 

CHAPTER Vin 
Why Great Men are not chosen Presidents 100 

CHAPTER IX 
The Cabinet . Ill 

CHAPTER X 
The Senate .126 

CHAPTER XI 
The Senate as an Executive and Judicial Body . 139 

CHAPTER XII 
The Senate: Its Working and Influence. 147 

CHAPTER XIII 
The House of Representatives 165 

CHAPTER XIV 
The House at Work . 18e^ 



CONTENTS XV 



CHAPTER XV 

PAGE 

The Committees of Congress 204 



CHAPTER XVI 

Congressional Legislation . . 219 

CHAPTER XVn 
Congressional Finance . . .233 

CHAPTER XVm 
The Relations of the Two Houses . 245 

CHAPTER XIX 
General Observations on Congrf^s 253 

CHAPTER XX 
The Relations of Congress to the President 278 

CHAPTER XXI 
The Legislature and the Executive 288 

/CHAPTER XXH 

The Federal Courts . . ^ . 306 

.... -. ..-^ 

CHAPTER XXm 



The Courts and TiiE Constitution 323 

I CHAPTER XXIV 
The Working of thf/ Courts 348 

CHAPTER XXV 
Comparison of the American and European Systems 369 ^ 



xvi CONTENTS 



CHAPTER XXVI 

PAGE 

Observations on the Frame of National Government 396 



CHAPTER XXVn 
The Federal System 415 

CHAPTER XXVIH 
Working Relations of the National and the State 

Governments . 432 

CHAPTER XXIX 
Criticism of the Federal System 453 

CHAPTER XXX 
Merits of the Federal System . 464 

CHAPTER XXXI 
Growth and Development of the Constitution 475 

CHAPTER XXXII 
The Amendment of the Constitution 481 

CHAPTER XXXm 
The Interpretation of the Constitution 492 

CHAPTER XXXIV 
The Development of the Constitution by Usage . 516 

CHAPTER XXXV 
The Results of Constitutional Development 528 



CONTENTS 



xvii 



APPENDIX 



On Constitutional Conventions 

What the Federal Constitution owes to the State 
Constitutions .... 

Extracts from the Rules of the Senate 

Private Bills ..... 

The Lobby ..... 

The Federal System of the English Universities 

Constitution of the Confederate States, 1861-65 

The Federal Constitution of Canada . 

The Dartmouth College Case . 

An American View of Parliament 

Articles of Confederation, 1781-88 

Constitution of the United States 



PAGE 

539 



545 
549 
551 
555 
561 
562 
564 
565 
567 
569 
576 



VOL. I 



VOL. II 



PART II — The State Governments 



CHAPTER XXXVI 

PAGE 

Nature of the American State ... 1 



CHAPTER XXXVn 
State Constitutions . . . . . 22 

CHAPTER XXXVni 
The Development of State Constitutions . . 51 

CHAPTER XXXIX 
Direct Legislation by the People . . . 67 

CHAPTER XL 
State Legislatures ..... 83 

CHAPTER XLI 
The State Executive . . . . 103 

CHAPTER XLH 
The State Judiciary. 112 



.% 



CONTENTS xix 



CHAPTER XLIII 

PAOS 

State Finance . . . . .125 



CHAPTER XLIV 
The Working of State Governments . . 145 

CHAPTER XLV 
Remedies for the Faults of State Governments . 172 

CHAPTER XLVI 
State Politics . . . . . 192 

CHAPTER XLVII 
The Territories ..... 208 

CHAPTER XLVIII 
Local Government . . . . 220 

CHAPTER XLIX 
Observations on Rural Local Government . 248 

CHAPTER L 
The Government of Cities . . . . 262 

CHAPTER LI 
The Working of City Governments . . 278 

CHAPTER LH 

An American View of Municipal Government in 

the United States . . . . 296 



XX 



CONTENTS 



PART III— The Party System 



CHAPTER LIII 
Political Parties and their History 



PAGE 

321 



CHAPTER LIV 



The Parties of To-day 



344 



CHAPTER LV 



Composition of i'he Parties . 



355 



CHAPTER LVI 



Further Observations on the Parties 



367 



CHAPTER LVII 



The Politicians 



386 



CHAPTER LVm 



Why the Best Men do not go into Politics 



403 



CHAPTER LIX 



Party Organizations. 



412 



CHAPTER LX 



The Machine . 



419 



CHAPTER LXI 



What the Machine has to do 



429 



CONTENTS 



XXI 



CHAPTER LXII 

PAGE 

How THE Machine works .... 438 



CHAPTER LXIII 
Rings and Bosses . . . .450 

CHAPTER LXIV 
Local Extension of Rings and Bosses . . 467 

CHAPTER LXV 
Spoils ....... 479 

CHAPTER LXVI 
Elections and their Machinery . . . 492 

CHAPTER LXVII 
Corruption . . . . . . 509 

CHAPTER LXVm 
The War against Bossdom . . . . 526 

CHAPTER LXIX 
Nominating Conventions . . . . 537 

CHAPTER LXX 
The Nominating Convention at Work . . 549 

CHAPTER LXXI 
The Presidential Campaign . . . 572 



xxii CONTENTS 



CHAPTER LXXII 

PAGE 

The Issues in PREsroENTiAL Elections 586 



CHAPTER LXXIII 
Further Observations on Nominations and Elections 595 

CHAPTER LXXIV 
Types of American Statesmen . 606 

CHAPTER LXXV 
What the People think of it 617 



APPENDIX 

Specimens of Provisions in State Constitutions limiting 

Taxing and Borrowing Powers . 627 

Explanation (by Mr. G. Bradford) op the Nominating 
Machinery and its Procedure in the State of 
Massachusetts ..... 630 

A Newspaper Account of the Republican National 

Nominating Convention of 1884 . 633 

Constitution of the State of California 643 



VOL. Ill 



PART IV— Public Opinion 



CHAPTER LXXVI 

PAOC 

The Nature of Public Opinion ... 3 



CHAPTER LXXVII 
Government by Public Opinion . . 14 

CHAPTER LXXVni 
How Public Opinion Rules in America . 24 

CHAPTER LXXIX 
Organs of Public Opinion . . . . 34 

CHAPTER LXXX 

National Characteristics as Moulding Public Opinion 48 

CHAPTER LXXXI 
Classes as Influencing Opinion . 64 

CHAPTER LXXXn 
Local Types of Opinion — East, West, and South . 81 



xxiv CONTENTS 



CHAPTER LXXXIII 

PAGE 

The Action of Public Opinion ... 98 



CHAPTER LXXXIV 
The Fatalism of the Multitude . . 120 

CHAPTER LXXXV 
The Tyranny of the Majority 133 

CHAPTER LXXXVI 
Wherein Public Opinion Fails . 144 

CHAPTER LXXXVII 
Wherein Public Opinion Succeeds . 156 



PART V — Illustrations and Reflections 



\ 



CHAPTER LXXXVm 
The Tweed Ring in New York City . 173 

CHAPTER LXXXIX 
The Philadelphia Gas Ring . . 199 

CHAPTER XC 
Kearneyism in California . . . .223 

CHAPTER XCI 
The Problem of Territorial Extension . 255 



y 



CONTENTS XXV 



CHAPTER XCII 

PAGE 

Laissez Faire . . . . . 266 



CHAPTER XCIII 
Women's Suffrage ..... 289 

CHAPTER XCIV 
The Supposed Faults of Democracy 304 

CHAPTER XCV 
The True Faults of American Democracy . 323 

CHAPTER XCVI 
The Strength of American Democracy . 338 

^ CHAPTER XCVn 

How FAR American Experience is Available for 

Europe ...... 355 



PART VI — Social Institutions 



CHAPTER XCVm 
The Bar ...... 367 

CHAPTER XCIX 
The Bench . . 386 

CHAPTER C 
Railroads . . . . .400 



xxvi CONTENTS 



CHAPTER CI 

PAGE 

Wall Street ...... 415 



CHAPTER CII 
The Universities . . . .426 

CHAPTER cm 
The Churches and the Clergy . . 465 

CHAPTER CIV 
The Influence of Religion . . 487 

CHAPTER CV 
The Position of Women .... 504 

CHAPTER CVI 
Equality . . . . .525 

CHAPTER CVII 
The Influence of Democracy on Thought 541 

CHAPTER CVIII 
Creative Intellectual Power . . 554 

CHAPTER CIX 
The Relation of the Unit>:d States to Europe . 572 

CHAPTER CX 
The Absence of a Capital .... 585 

CHAPTER CXI 
American Oratory . . 595 



CONTENTS xxvii 



CHAPTER CXII 

PAGE 

The Pleasantness of American Life . 607 



CHAPTER CXm 
The Uniformity of American Life . . 618 

CHAPTER CXIV 
The Temper of the West . 634 

CHAPTER CXV 
The Future of Political Institutions 648 

CHAPTER CXVI 
Social and Economic Future . . 665 



INDEX ...... 687 



LIST OF PRESIDENTS 

1789-1793 George Washington. 

1793-1797 Ee-elected. 

1797-1801 John Adams. 

1801-1805 Thomas Jefferson. 

1805-1809 Ee-elected. 

1809-1813 James Madison. 

1813-1817 Ee-elected. 

181 7-1 821 James Monroe. 

1821-1825 Ee-elected. 

1825-1829 John Quincy Adams. 

1829-1833 Andrew Jackson. 

1833-1837 Ee-elected. 

1837-1841 Martin van Buren. 

1841-1845 William Henry Harrison (died 1841). 

John Tyler. 

1845-1849 James K Polk. 

1849-1853 Zachary Taylor (died 1850). 

Millard Fillmore. 

1853-1857 Franklin Pierce. 

1857-1861 James Buchanan. 

1861-1865 Abraham Lincoln. 
1865-1869 Ee-elected (died 1865). 

Andrew Johnson. 

1869-1873 Ulysses S. Grant. 
1873-1877 Ee-elected. 

1877-1881 EuTHERFORD B. Hayes. 

1881-1885 James Abram Garfield (died 1881). 

Chester A. Arthur. 

1885-1889 Stephen Grover Cleveland. 



AREA, POPULATION, AND DATE OF ADMISSION 

OF THE STATES 



The Thirteen Original States, in the order in which they 

Ratified the Constitution. 





Ratitled the 


Area in 


Population 
(1880). 




Constitution. 


square miles. ^ 


Delaware 


1787 


1,960 


146,608 


Pennsylvania . 


1787 


44,985 


4,282,891 


New Jersey . 


1787 


7,455 


1,131,116 


Georgia 


1788 


58,980 


1,542,180 


Connecticut . 


1788 


4,845 


622,700 


Massachusetts 


1788 


8,040 ' 


1,783,085 


Maryland 


1788 


9J860 


934,943 


South Carolina 


1788 


30,170 


995,577 


New Hampshire 


1788 


9,005 


346,991 


Virginia 


1788 


40,125 


1,512,565 


New York 


1788 


47,620 


5,082,871 


North Carolina 


1789 


48,580 


1,399,750 


Khode Island . 


1790 


1,085 


276,531 



States subsequently admitted, in the order op their 

Admission. 



Vermont 


1791 


9,135 


332,286 


Kentucky 


1792 


40,000 


1,648,690 


Tennessee 


1796 


41,750 


1,542,359 


Ohio . 


1802 


40,760 


3,198,062 


Louisiana 


1812 


45,420 


939,946 


Indiana 


1816 


35,910 


1,978,301 


Mississippi 


1817 


46,340 


1,131,597 


Illinois . 


1818 


56,000 


3,077,871 


Alabama 


1819 


51,540 


1,262,505 


Maine . 


1820 


29,895 


648,936 


Missouri 


1821 


68,735 


2,168,380 


Arkansas 


1836 


53,045 


802,525 


* Accc 


)rdiDg to census 


returns of 1880. 





AJ^EA, POPULATION, ETC, 



XXXI 





Ratifled the 


Area in 


Population 




Constitution. 


square miles. 


(1880). 


Michigan 


1837 


57,430 


1,636,937 


Florida . 


1845 


54,240 


269,493 


Texas . 


1845 


262,290 


1,591,749 


Iowa 


1846 


55,475 


1,624,615 


Wisconsin 


1848 


54,450 


1,315,497 


California 


1850 


155,980 


864,694 


Minnesota 


1858 


79,205 


780,773 


Oregon . 


1859 


94,560 


174,768 


Kansas . 


1861 


81,700 


996,096 


W. Virginia . 


1863 


24,645 


618,457 


Nevada 


1864 


109,740 


62,266 


Nebraska 


1867 


76,185 


452,402 


Colorado 


1876 


103,645 


194,327 



THE TERRITORIES 





Area. 


Population iu 1880. 


Dakota 


147,700 


135,177 


Wyoming . 


97,575 


20,789 


Montana . 


145,310 


39,159 


Idaho 


84,290 


32,610 


Washington 


66,880 


75,116 


Utah 


82,190 


143,963 


New Mexico 


122,460 


119,565 


Arizona 


112,920 


40,440 



{Jht population of Dakota and Washington has enoi'mously increased 

since 1880.) 



Dates of some Remarkable Events in the History 
OF THE North American Colonies and Unitei 
States. 

1606 First Charter of Virginia. 

1607 First Settlement in Virginia. 
1620 First Settlement in Massachusetts. 
1664 Taking of New Amsterdam (New York). 

1769 Battle of Heights of Abraham and taking of Quebec. 

1775 Beginning of the Revolutionary War. 

1776 Declaration of Independence. 
1781 Formation of the Confederation. 

1783 Independence of United States recognized. 

1787 Constitutional Convention at Philadelphia. 

1788 The Constitution ratified by Nine States. 

1789 Beginning of the Federal Government 
1793 Invention of the Cotton Gin. 

1 803 Purchase of Louisiana from France. 

1812-14 War with England. 

1812-15 Disappearance of the Federalist Party. 

1819 Purchase of Florida from Spain. 

1819 Steamers begin to cross the Atlantic. 

1820 The Missouri Compromise. 
1828-32 Formation of the Whig Party. 
1830 First Passenger Railway opened. 

1840 National Nominating Conventions regularly establishe 

1844 First Electric Telegraph in operation. 

1845 Admission of Texas to the Union. 
1846-48 Mexican War and Cession of California. 
1852-56 Fall of the Whig Party. 

1854-56 Formation of the Republican Party. 

1857 Dred Scott decision delivered. 

1861-65 War of Secession. 

1869 First Trans-Continental Railway completed. 

1877 Final withdrawal of Federal troops from the South. 

1879 Specie Payments resumed. 



CHAPTER I 



INTRODUCTORY 



" What do you think of our institutions ? " is the ques- 
tion addressed to the European traveller in the United 
States by every chance acquaintance. The traveller 
finds the question natural, for if he be an observant 
man his own mind is full of these institutions. But he 
asks himself why it should be in America only that he 
is so interrogated. In England one does not inquire 
from foreigners, nor even from Americans, their views 
on the English laws and government; nor does the 
Englishman on the Continent find Frenchmen or Ger- 
mans or Italians anxious to have hi^ judgment on their 
politics. Presently the reason of the difference appears. 
The institutions of the United States are deemed by 
inhabitants and admitted by strangers to be a matter of 
more general interest than those of the not less famous 
nations of the Old World. They are, or are supposed 
to be, institutions of a new t5rpe. They form, or are 
supposed to form, a symmetrical whole, capable of being 
studied and judged all together more profitably than 
the less perfectly harmonized institutions of older coun- 
tries. They represent an experiment in the rule of the 
multitude, tried on a scale unprecedentedly vast, and 
the results of which every one is concerned to watch. 

VOL. I B 



2 THE UNITED STATES chap. 

And yet they are something more than an experiment, 
for they are believed to disclose and display the type of 
institutions towards which, as by a law of fate, the rest of 
civilized mankind are forced to move, some with swifter, 
others with slower, but all with unresting feet. 

When our traveller returns home he is again inter- 
rogated by the more intelligently curious of his friends. 
But what now strikes him is the inaptness of their 
questions. Thoughtful Europeans have begun to realize, 
whether with satisfaction or regret, the enormous and 
daily-increasing influence of the United States, and the 
splendour of the part reserved for them in the develop- 
ment of civilization. But such men, unless they have 
themselves crossed the Atlantic, have seldom either 
exact or correct ideas regarding the phenomena of the 
New World. The social and political experiments of 
America constantly cited in Europe both as patterns and 
as warnings are hardly ever cited with due knowledge 
of the facts, much less with comprehension of what they 
teach ; and where premises are misunderstood inferences 
must be unsound. 

It is such a feeling as this, a sense of the immense 
curiosity of Europe regarding the social and political 
life of America, and of the incomparable significance of 
American experience, that has led and will lead so 
/many travellers to record their impressions of the Land 
of the Future. Yet the very abundance of descriptions 
in existence seems to require the author of another to 
justify himself for adding it to the list. 

I might plead that America changes so fast that 
/every few years a new crop of books is needed to de- 
scribe the new face which things have put on, the new 
problems that have appeared, the new ideas germinat- 
ing among her people, the new and unexpected develop- 



INTRODUCTORY 



ments for evil as well as for good of which her established 
institutions have been found capable. I might observe 
that a new generation grows up every few years in 
Europe, which does not read the older books, because 
they are old, but may desire to read a new one. And if 
a further reason is asked for, let it be found in this, that 
during the last fifty years no author has proposed to 
himself the aim of portraying the whole political system 
of the country in its practice as well as its theory, 
of explaining not only the National Government but 
the State Governments, not only the Constitution but 
the party system, not only the party system but 
the ideas, temper, habits of the sovereign people. 
Much that is valuable has been written on particular 
parts or aspects of the subject, but no one seems to 
have tried to deal with it as a whole ; not to add that 
some of the ablest writers have been either advocates, 
often professed advocates, or detractors of democracy. 

To present such a general view of the United States 
both as a Government and as a Nation is the aim of the 
present book. But in seeking to be comprehensive it 
does not attempt to be exhaustive. The efibrt to cover 
the whole ground with equal minuteness, which a pene- 
trating critic — the late Karl Hillebrand — ^remarked upon 
as a characteristic fault of English writers, is to be 
avoided not merely because it wearies a reader, but 
because it leads the writer to descant as fully upon 
matters he knows imperfectly as upon those with which 
his own tastes and knowledge qualify him to deal. 
I shall endeavour to omit nothing which seems necessary 
to make the political life and the national character and 
tendencies of the Americans intelligible to Europeans, 
and with this view shall touch upon some topics only 
distantly connected with government or politics. But 



4 THE UNITED STATES chap. 

there are also many topics, perhaps no more remote 
from the main subject, which I shall pass lightly over, 
either because they have been sufficiently handled by 
previous writers, or because I have no such minute 
acquaintance with them as would make my observations 
profitable. For instance, the common-school system of 
the United States has been so frequently and fully de- 
scribed in many easily accessible books that an account 
of it will not be expected from me. But American 
universities have been generally neglected by European 
observers, and may therefore properly claim some pages. 
The statistics of manufactures, agriculture, and commerce, 
the systems of railway finance and railway management, 
are full of interest, but they would need so much space 
to be properly set forth and commented on that it 
would be impossible to bring them within the present 
volumes, even had I the special skill and knowledge 
needed to distil from rows of figures the refined spirit 
of instruction. Moreover, although an account of these 
facts might be made to illustrate the features of American 
civilization, it is not necessary to a comprehension of 
American character. Observations on the state of liter- 
ature and religion are necessary, and I have therefore 
endeavoured to convey some idea of the literary tastes 
and the religious habits of the people, and of the part 
which these play in forming and colouring the whole life 
of the country. 

The book which it might seem natural for me to 
take as a model is the Democracy in America of Alexis 
de Tocqueville. It would indeed, apart from the danger 
of provoking a comparison with such an admirable 
master of style, have been an interesting and useful task 
to tread in his steps, and seek to do for the United 
States of 1888, with their sixty millions of people, what 



INTRODUCTORY 



he did for the fifteen millions of 1832. But what I 
have actually tried to accomplish is something different, 
for I have conceived the subject upon quite other 
lines. To De TocqueviUe America was primarily a 
democracy, the ideal democracy, fraught with lessons 
for Europe, and above all for his own France. 
What he has given us is not so much a descrip- 
tion of the country and people as a treatise, full of 
exquisite observation and elevated thinking, upon 
democracy, a treatise whose conclusions are illustrated 
from America, but are in large measure founded, not so 
much on an analysis of American phenomena, as on 
general views of democracy which the circumstances of 
France had suggested. Democratic government seems 
to me, with all deference to his high authority, a 
cause not so potent in the moral and social sphere 
as he deemed it ; and my object has been less to dis- 
cuss its merits than to paint the institutions and people 
of America as they are, tracing what is peculiar in 
them not merely to the sovereignty of the masses, but 
also to the history and traditions of the race, to its 
fundamental ideas, to its material environment. I 
have striven to avoid the temptations of the deductive 
method, and to present simply the facts of the case, 
arranging and connecting them as best I can, but letting 
them speak for themselves rather than pressing upon the 
reader my own conclusions. The longer any one studies 
a vast subject, the more cautious in inference does he 
become. When I first visited America eighteen years 
ago, I brought home a swarm of bold generalizations. 
Half of them were thrown overboard after a second visit 
in 1881. Of the half that remained, some were dropped 
into the Atlantic when I returned across it after a 
third visit in 1883-84: and although the two later 



iJ 



v^ 



6 THE UNITED STATES chap. 

journeys gave birth to some new views, these views are 
fewer and more discreetly cautious than their departed 
sisters of 1870. I can honestly say that I shall be far 
better pleased if readers of a philosophic turn find in 
the book matter on which they feel they can safely build 
theories for themselves, than if they take from it theories 
ready made. 

In the efi*ort to bring within reasonable compass ai 
description of the facts of to-day, I have had to resist 
another temptation, that of straying off into history. 
The temptation has been strong, for occasional excur- 
sions into the past might have been used not only to 
enliven but to confirm and illustrate statements the 
evidence for which it has sometimes been necessary 
to omit. American history, of which Europeans know 
scarcely anything, may be wanting in colour and 
romance when compared with the annals of the great 
states of the Old World ; but it is eminently rich in 
political instruction. I hope that my American readers, 
who, if I am not mistaken, know the history of their 
\ country better than the English know that of England, 
will not suppose that I have ignored this instruction, but 
will allow for the omissions forced on me by the magnitude 
of the subject which I am trying to compress into three 
volumes. Similar reasons have compelled me to deal 
briefly with the legal aspects of the Constitution ; but 
this is a defect which the lay reader will probably deem 
a merit. 

Even when limited by the exclusion of history and 
law, the subject remains so vast and complex as to 
make necessary an explanation of the conception I have 
formed of it, and of the plan upon which the book has 
been constructed. 

There are three main things that one wishes to know 



INTRODUCTORY 



about a national commonwealth, viz. its framework and, 
constitutional machinery, the methods by which it is 
worked, the forces which move it and direct its course. 
It is natural to begin with the first of these. Accord- 
ingly, I begin with the Government ; and as the powers 
of government are two-fold, being vested partly in the 
National or Federal authorities and partly in the States, 
I begin with the National Government, whose structure 
presents less difficulty to European minds, because it 
resembles the national government in each of their 
own countries. Part I. therefore contains an account of 
the several Federal authorities, the President, Congress, 
the Courts of Law. It describes the relations of the 
National or central power to the several States. It 
discusses the nature of the Constitution as a funda- 
mental supreme law, and shows how this stable and 
rigid instrument has been in a few points expressly, in 
many others tacitly and half unconsciously modified. 

Part II. deals similarly with the State Governments, 
examining the constitutions that have established them, 
the authorities which administer them, the practical 
working of their legislative bodies. And as local 
government is a matter of State regulation, there is also 
given some account of the systems of rural and city 
government which have been created in the various 
States, and which have, rural government for its merits 
and city government for its faults, become the theme of 
copious discussion among foreign students of American 
institutions. 

(Part III.) The whole machinery, both of National and 
of State governments, is worked by the political parties. 
Parties have been organized far more elaborately in the 
United States than anywhere else in the world, and have 
passed more completely under the control of a professional 



8 THE UNITED STATES chap. 

class. The party organizations in fact form a second 
body of political machinery, existing side by side with 
that of the legally constituted government, and scarcely 
less complicated. Politics, considered not as the science 

J of government, but as the art of winning elections 
and securing office, has reached in the United States a 
development surpassing in elaborateness that of England 
or France as much as the methods of those countries 
surpass the methods of Servia or Roumania. Part III. 
contains a sketch of this party system, and of the men 
who "run" it, topics which deserve and would repay 
a fuller examination than they have yet received even 
in America, or than my Hmits permit me to bestow. 

(Part IV. ) The parties, however, are not the ultimate 
force in the conduct of affairs. Behind and above them 
stands the people. Public opinion, that is the mind and 
conscience of the whole nation, is the opinion of persons 
who are included in the jJarties, for the parties taken 
together are the nation ; and the parties, each claiming 
to be its true exponent, seek to use it for their purposes. 
Yet it stands above the parties, being cooler and larger 
minded than they are ; it awes party leaders and holds 
in check party organizations. No one openly ventures to 
resist it. It determines the direction and the character of 
national policy. It is the product of a greater number 
of minds than in any other country, and it is more in- 

i disputably sovereign. It is the central point of the 
whole American polity. To describe it, that is, to sketch 
the leading political ideas habits and tendencies of the 
American people, and show how they express themselves 
in action, is the most difficult and also the most vital 
part of my task ; and to this task the twelve chapters of 
Part IV. are devoted. 

(Part V.) As the descriptions given and propositions 



INTRODUCTORY 



advanced in treating of the party system and of public 
opinion are necessarily general, they seem to need illus- 
tration by instances drawn from recent American history. 
I collect three such instances in Part V., and place 
there a discussion of several political questions which 
lie outside party politics, together with some chapters 
in which the attempt is made to estimate the strength 
and weakness of democ;:atic government as it exists in 
the United States, and to compare the phenomena which 
it actually shows with those which European speculation 
has attributed to democracy in general 

(Part VI.) At thiij point the properly political sections 
of the book end. But there are certain non-political insti- 
tutions, certain aspects of society, certain intellectual or 
spiritual forces, which count for so much in the total life 
of the country, in the total impression which it makes 
and the hopes for the future which it raises, that they 
cannot be left unnoticed. These, or rather such of them 
as I have been able to study and as have not been fully 
handled by others before me, will be found briefly 
treated in Part VI. In the view which I take of them, 
they are all germane, though not all equally germane, 
to the main subject of the book, which is the character, 
temper, and tendencies of the American nation, as they 
are expressed primarily in political and social institu- 
tions, secondarily in Uterature and manners. 

This plan involves some repetition. But an author 
who finds himself obliged to choose between repetition 
and obscurity ought not to doubt as to his choice. 
Whenever it has been necessary to trace a phenomenon 
to its source, or to explain a connection between 
several phenomena, I have not hesitated, knowing 
that one must not expect a reader to carry in his mind 
all that has been told already, to re-state a material 



lo THE UNITED STATES chap. 

fact, or re-enforce a view which gives to the facts what 
I conceive to be their true significance. 

It may be thought that a subject of this great com- 
pass ought, if undertaken at all, to be undertaken by a 
native American. No native American has, however, 
undertaken it. Such a writer would doubtless have 
great advantages over a stranger. Yet there are two 
advantages which a stranger, or at least a stranger who 
is also an Englishman, with some practical knowledge 
of English politics and English law, may hope to 
secure. He is struck by some things which a native 
does not think of explaining, because they are too 
obvious, and whose influence on poUtics or society he 
forgets to estimate, since they seem to him part of the 
order of nature. And the stranger finds it easier to 
maintain a position of detachment, detachment not only 
from party prejudice, but from those prepossessions in 
favour of persons, groups, constitutional dogmas, national 
pretensions, which a citizen can scarcely escape except 
by falling into that attitude of impartial cynicism which 
sours and perverts the historical mind as much as pre- 
judice itself. He who regards a wide landscape from a 
distant height sees its details imperfectly, and must 
unfold his map in order to make out where each village 
lies, and how the roads run from point to point. But 
he catches the true perspective of things better than if 
he were standing among them. The great features of 
the landscape, the valleys, slopes, and mountains, appear 
in their relative proportion : he can estimate the height 
of the peaks and the breadth of the plains. So one who 
writes of a country not his own may turn his want of 
familiarity with details to good account if he fixes his 
mind strenuously on the main characteristics of the 
people and their institutions, while not forgetting to 



INTRODUCTOR Y 1 1 



fill up gaps in his knowledge by frequent reference to 
native authorities. My own plan has been first to write 
down what struck me as the salient and dominant facts, 
and then to test, by consulting American friends and by 
a further study of American books, the views which I 
had reached. 

To be non - partisan, as I trust to have been, 
in describing the politics of the United States, is not 
diflBcult for a European, especially if he has the good 
fortune to have intimate friends in both the great 
American parties. To feel and show no bias in those 
graver and more sharply accentuated issues which 
divide men in Europe, the issues between absolutism, 
oligarchy, and democracy; between strongly unified 
governments and the policy of decentralization, this is 
a harder task, yet a not less imperative duty. This 
much I can say, that no fact has been either stated or 
suppressed, and no opinion put forward, with the pur- 
pose of serving any English party-doctrine or party-policy, 
or in any way furnishing arguments for use in any 
English controversy. The admirers and the censors of 
popular government are equally likely to find in the 
present treatise materials suited to their wishes ; and in 
many cases, if I may judge from what has befallen some 
of my predecessors, they will draw from these materials \ 
conclusions never intended by the author. 

Few things are more diflScult than to use aright 
arguments founded on the political experience of other 
countries. As the chief practical use of history is tov 
deliver us from plausible historical analogies, so a com- 
prehension of the institutions of other nations enables us 
to expose sometimes the ill-grounded hopes, sometimes 
the idle fears, which loose reports about those nations 
generate. Direct inferences from the success or failure 



12 THE UNITED STATES chap. 

of a particular constitutional arrangement or political 
usage in another country are rarely sound, because the 
conditions diflfer in so many respects that there can be 
no certainty that what flourishes or languishes under 
other skies and in another soil will likewise flourish or 
languish in our own. Many an American institution 
would bear a dififerent fruit if transplanted to England, 
as there is hardly an English institution which has not 
undergone, like the plants and animals of the Old 
World, some change in America. The examination and 
appraisement of the institutions of the United States is 
no doubt full of instruction for Europe, full of encourage- 
ment, full of warning ; but its chief value lies in what 
may be called the laws of political biology which it reveals, 
in the new illustrations and enforcements it supplies of 
general truths in social and political science, truths 
some of which were perceived long ago by Plato and 
Aristotle, but might have been forgotten had not 
America poured a stream of new light upon them. 
Now and then we may directly claim transatlantic 
experience as accrediting or discrediting some specific 
constitutional device or the policy of some enactment. 
But even in these cases he who desires to rely on the 
results shown in America must first satisfy himself that 
there is such a parity of conditions and surroundings in 
respect to the particular matter as justifies him in reason- 
ing directly from ascertained results there to probable 
results in his own country. 

It is possible that these pages, or at least those of 
them which describe the party system, may produce on 
European readers an impression which the author 
neither intends nor desires. They may set before him a 
picture with fewer lights and deeper shadows than I 
have wished it to contain. Sixteen years ago I travelled 



INTRO D UCTOR Y 1 3 



in Iceland with two friends. We crossed the great 
Desert by a seldom trodden track, encountering, during 
two months of late autumn, rains, tempests, snowstorms, 
and other hardships too numerous to recount. But 
the scenery was so grand and solemn, the life so novel, 
the character of the people so attractive, the historic 
and poetic traditions so inspiring, that we returned 
fall of delight with the marvellous isle. When we ex- 
pressed this enchantment to our EngUsh jfriends, we 
were questioned about the conditions of travel, and 
forced to admit that we had been frozen and starved, 
that we had sought sleep in swamps or on rocks, that 
the Icelanders lived in huts scattered through a wilder- 
ness, with none of the luxuries and few even of the 
comforts of life. Our friends passed over the record of 
impressions to dwell on the record of physical experi- 
ences, and conceived a notion of the island totally 
different from that which we had meant to convey. 
We perceived too late how much easier it is to state 
tangible facts than to communicate impressions. If 
I may attempt ' to apply the analogy to the United 
States and their people, I will say that they make 
on the visitor an impression so strong, so deep, so 
fascinating, so inwoven with a hundred threads of 
imagination and emotion, that he cannot hope to 
reproduce it in words, and to pass it on undiluted to 
other minds. With the broad facts of politics it is 
otherwise. These a traveller can easily set forth, 
and is bound in honesty to set forth, knowing that in 
doing so he must state much that is sordid, much that 
will provoke unfavourable comment. The European 
reader grasps these tangible facts, and, judging them as 
though they existed under European conditions, draws 
from them conclusions disparaging to the country and 



14 THE UNITED STATES chap. 

the people. What he probably fails to do, because 
this is what the writer is most likely to fail in enabling 
him to do, is to realize the existence in the American 
people of a reserve of force and patriotism more than 
suflBcient to sweep away all the evils which are now 
tolerated, and to make the politics of the country 
worthy of its material grandeur and of the private 
virtues of its inhabitants. America excites an admira- 
tion which must be felt upon the spot to be understood. 
.The hopefulness of her people communicates itself to 
one who moves among them, and makes him perceive 
that the graver faults of politics may be far less 
dangerous there than they would be in Europe. A 
hundred times in writing this book have I been dis- 
heartened by the facts I was stating : a hundred times 
has the recollection of the abounding strength and 
vitality of the nation chased away these tremors. 

There are other risks to which such a book as this is 
necessarily exposed. There is the risk of supposing 
that to be generally true which the writer has himself 
seen or been told, and the risk of assuming that what is 
now generally true is likely to continue so. Against the 
former of these dangers he who is forewarned is fore- 
armed : as to the latter I can but say that whenever I 
have sought to trace a phenomenon to its causes I have 
also sought to inquire whether these causes are likely 
to be permanent, a question which it is well to ask 
even when no answer can be given. I have attributed 
less to the influence of democracy than most of my 
predecessors have done, believing that explanations 
drawn from a form of government, being easy and 
obvious, ought to be cautiously employed. Some one 
has said that the end of philosophy is to diminish 
the number of causes, as the aim of chemistry is to re- 



INTRO D UCTOR Y 1 5 



duce that of the elemental substances. But it is an end 
not to be hastily pursued. A close analysis of social and 
political phenomena often shows us that causes are more 
complex than had at first appeared, and that that 
which had been deemed the main cause is active only 
because some inconspicuous, but not less important, 
condition is also present. The inquisition of the forces 
which move society is a high matter ; and even where 
certainty is unattainable it is some service to science 
to have determined the facts, and correctly stated the 
problems, as Aristotle remarked long ago that the first 
step in investigation is to ask the right questions. 

I have, however, dwelt long enough upon the perils 
of the voyage : it is now time to put to sea. We 
shall begin with a survey of the national government, 
examining its nature and describing the authorities 
which compose it. 



PAKT I 

CHAPTER II 

THE NATION AND THE STATES 

A PEW years ago the American Protestant Episcopal 
Church was occupied at its annual Convention in revising 
its liturgy. It was thought desirable to introduce among 
the short sentence prayers a prayer for the whole 
people ; and an eminent New England divine proposed 
the words " Lord, bless our nation." Accepted one 
afternoon on the spur of the moment, the sentence was 
brought up next day for reconsideration, when so many 
objections were raised by the laity to the word " nation," 
as importing too definite a recognition of national unity, 
that it was dropped, and instead there were adopted the 
words " Lord, bless these United States." 

To Europeans who are struck by the patriotism and 
demonstrative national pride of their transatlantic 
visitors, this fear of admitting that the American 
people constitute a nation seems extraordinary. But 
it is only the expression on its sentimental side of the 
most striking and pervading characteristic of the poli- 
tical system of the country, the existence of a double 
government, a double allegiance, a double patriotism. 
America — I call it America (leaving out of sight South 
America, Canada, and Mexico), in order to avoid using 



CHAP. II THE NATION AND THE STATES 17 

I il l ! . 1 I a» 

at this stage the term United States — America is a 
Commonwealth of commonwealths, a Kepublic of re- 
publics, a State which, while one, is nevertheless composed 
of other States even more essential to its existence than 
it is to theirs. 

This is a point of so much consequence, and so apt 
to be misapprehended by Europeans, that a few sentences 
may be given to it. 

When within a large political community smaller 
communities are found existing, the relation of the 
smaller to the larger usually appears in one or other of 
the two following forms. One form- is that of a 
League, in which a number of political bodies, be 
they monarchies or republics, are bound together so 
as to constitute for certain purposes, and especially for 
the purpose of common defence, a single body. The 
members of such a composite body or league are not 
individual men but communities. It exists only 
as an aggregate of communities, and will therefore 
vanish so soon as the communities which compose it 
separate themselves from one another. Moreover it 
deals with and acts upon these communities only. 
With the individual citizen it has nothing to do, no 
right of taxing him, or judging him, or making laws 
for him, for in all these matters it is to his own com- 
munity that the allegiance of the citizen is due. A 
familiar instance of this form is to be found in the 
Germanic Confederation as it existed from 1815 till 
J 866. The Hanseatic League in mediaeval Germany, 
the Swiss Confederation down till the present century, 
are other examples. 

In the second form, the smaller communities are 
mere subdivisions of that greater one which we call the 
Nation. They have been created, or at any rate they 

VOL. I c 



1 8 THE NATIONAL GOVERNMENT parti 

-r T I - ■■ I ^1 I ■ I ■■» ^m ■ I ■ ^^^^M ^ ^^ ■ M MM ■ ^ii ■ an m^^^^m ■ 

exist, for administrative purposes only. Such powers 
as they possess are powers delegated by the nation, and 
can be overridden by its will. The nation acts directly 
by its own ofl&cers, not merely on the communities, 
but upon every single citizen ; and the nation, because 
it is independent of these communities, would con- 
tinue to exist were they all to disappear. Examples of 
such minor communities may be found in the depart- 
ments of modem France and the counties of modern 
England. Some of the English counties were at one 
time, like Kent or Dorset, independent kingdoms or 
tribal districts; some, like Bedfordshire, were artificial 
divisions from the first. All are now merely local 
administrative areas, the powers of whose local 
authorities have been delegated from the national 
government of England. The national government 
does not stand by virtue of them, does not need them. 
They might all be abolished or turned into wholly 
difierent communities without seriously affecting its 
structure. 

The American Federal Republic corresponds to 
neither of these two forms, but may be said to stand 
between them. Its central or national government 
is not a mere league, for it does not wholly depend 
on the component communities which we call the 
States. It is itself a commonwealth as well as a 
union of commonwealths, because it claims directly 
the obedience of every citizen, and acts immediately 
upon him through its courts and executive oflScers. 
Still less are the minor communities, the States, mere 
subdivisions of the Union, mere creatures of the national 
government, like the counties of England or the de- 
partments of France. They have over their citizens 
an authority which is their own, and not delegated 



CHAP. II THE NATION AND THE STATES 19 

by the central government. They have not been called 
into being by that government. They existed before it. 
They could exist without it. 

The central or national government and the State 
governments may be compared to a large building and 
a set of smaller buildings standing on the same 
ground, yet distinct from each other. It is a com- 
bination sometimes seen where a great church has 
been erected over more ancient homes of worship. 
First the soil is covered by a number of small 
shrines and chapels, built at different times and in dif- 
ferent styles of architecture, each complete in itself 
Then over them and including them all in its spacious 
fabric there is reared a new pile with its own loftier 
roof, its own walls, which may perhaps rest on and 
incorporate the walls of the older shrines, its own 
internal plan.^ The identity of the earlier buildings 
has however not been obliterated ; and if the later 
and larger structure were to disappear, a little repair 
would enable them to keep out wind and weather, and 
be again what they once were, distinct and separate 
edifices. So the American States are now all inside the 
Union, and have all become subordinate to it. Yet the 
Union is more than an aggregate of States, and the 
States are more than parts of the Union. It might be 
destroyed, and they, adding a few further attributes of 
power . to those they now possess, might survive as 
independent self-governing communities. 

This is the cause of that immense complexity which 
startles and at first bewilders the student of American 
institutions, a complexity which makes American history 

^ I do not profess tx) indicate any one building which exactly corre- 
sponds to what I have attempted to describe, but there are several both 
in Italy and in Egypt that seem to justify the simile. 



20 THE NATIONAL GOVERNMENT parti 

and current American politics so difficult to the Euro- 
pean who finds in them phenomena to which his own 
experience supplies no parallel. There are two loyalties, 
two patriotisms ; and the lesser patriotism, as the inci- 
dent in the Episcopal Convention shows, is jealous of 
the greater. There are two governments, covering the 
same ground, commanding, with equally direct author- 
ity, the obedience of the same citizen. 

The casual reader of American political intelligence 
in European newspapers is not struck by this pheno- 
menon, because State politics and State afiairs generally 
are seldom noticed in Europe. Even the traveller who 
visits America does not realize its importance, because 
the things that meet his eye are superficially similar all 
over the continent, and that which Europeans call the 
machinery of government is in America conspicuous 
chiefly by its absence. But a due comprehension of 
this double organization is the first and indispensable 
step to the comprehension of American institutions : as 
the elaborate devices whereby the two systems of 
government are kept from clashing are the most 
curious subject of study which those institutions 
present. 

How did so complex a system arise, and what influ- 
ences have moulded it into its present form ? This is 
a question which cannot be answered without a few 
words of historical retrospect. I am sensible of the 
danger of straying into history, and the more anxious 
to avoid this danger, because the task of describing 
American institutions as they now exist is more than 
sufficiently heavy for one writer and one book. But an 
outline, a brief and plain outline, of the events which 
gave birth to the Federal system in America, and which 
have nurtured national feeling without extinguishing 



CHAP. II THE NATION AND THE STATES 21 

State feeling, seems the most natural introduction 
to an account of the present Constitution, and may 
dispense with the need for subsequent explanations 
and digressions. It is the only excursion into the 
historical domain which I shall have to ask the reader 
to make. 



CHAPTEK III 

THE ORIGIN OF THE CONSTITUTION 

When in the reign of George III. troubles arose between 
England and her North American colonists, there existed 
along the eastern coast of the Atlantic thirteen little 
communities, the largest of which (Virginia) had not 
much more than half a million of people, and the total 
population of which did not reach three millions. All 
owned allegiance to the British Crown, all, except Con- 
necticut and Khode Island, received their governors from 
the Crown ; in all, causes were carried by appeal from the 
colonial courts to the English Privy Council.^ Acts of 
the British Parliament ran there, as they now run in the 
British colonies, whenever expressed to have that eflfect, 
and could over-rule such laws as the colonies might 
make. But practically each colony was a self-governing 
commonwealth, left to manage its own affairs with 
scarcely any interference from home. Each had its 
legislature, its own statutes adding to or modifying the 
English common law, its local corporate life and tradi- 
tions, with no small local pride in its own history and in- 
stitutions, superadded to the pride of forming part of the 

1 In Rhode Island no appeal seems to have lain to the Crown, and 
the power of legislation was by the charters of 1643 and 1663 left to 
the colony with the proviso only that the laws should be agreeable to 
those of England " as near as may be, considering the nature and consti- 
tution of the place and people." 



CHAP. Ill THE ORIGIN OF THE CONSTITUTION 23 

English race and the great free British realm. Between 
the various colonies there was no other political connec- 
tion than that which arose from their all belonging to 
this race and realm, so that the inhabitants of each 
enjoyed in every one of the others the rights and 
privileges of British subjects. 

When the oppressive measures of the home govern- 
ment roused the colonies, they naturally sought to 
organize their resistance in common.^ Singly they 
would have been an easy prey, for it was long doubtful 
whether even in combination they could make head 
against regular armies. A congress of delegates from 
nine colonies held at New York in 1765 was followed 
by another at Philadelphia in 1774, at which twelve 
were represented, which called itself Continental (for the 
name American had not yet become established),^ and 
spoke in the name of " the good people of these colonies," 
the first assertion of a sort of national unity among the 
English of America. This congress, in which from 1775 
onwards all the colonies were represented, was a merely 
revolutionary body, called into existence by the war 
with the mother country. But in 1776 it declared the 
independence of the colonies, and in 1777 it gave itself 
a new legal character by framing the "Articles of 
Confederation and Perpetual Union," ^ whereby the 
thirteen States (as they now called themselves) entered 
into a "firm league of friendship" with each other, 
offensive and defensive, while declaring that "each 

^ There had been a congress of delegates from seven colonies at 
Albany in 1764 to deliberate on measures relative to the impending war 
with France, but this, of course, took place with the sanction of the 
mother country, and was a purely temporary measure. 

2 In the earlier part of last century the name " American" seems to 
have denoted the native Indians, as it does in Wesley's hymn ** The dark 
Americans convert. " The War of Independence gave it its present meaning. 

3 See these Articles in the Appendix at the end of this volume. 



24 THE NATIONAL GOVERNMENT parti 

State retains its sovereignty, freedom, and independence, 
and every power, jurisdi^ticoi. and right which is not by 
this Confederation ei^ressly Relegated to the United 
States in Congress asse] 

This Confederation, which was not ratified by all the 
States till 1781, was rather a league than a national 
government, for it possessed no central authority except 
an assembly in which every State, the largest and the 
smallest alike, had one vote, and this authority had no 
jurisdiction over the individual citizens. There was no 
Federal executive, no Federal judiciary, no means of 
raising money except by the contributions of the States, 
contributions which they were slow to render, no power 
of compelling the obedience either of States or individuals 
to the commands of Congress. The plan corresponded 
to the wishes of the colonists, who did not yet deem 
themselves a nation, and who in their struggle against 
the power of the British Crown were resolved to set over 
themselves no other power, not even one of their own 
choosing. But it worked badly even while the struggle 
lasted, and after the immediate danger from England 
had been removed by the peace of 1783, it worked still 
worse, and was in fact, as Washington said, no better 
than anarchy. The States were indifferent to Congress 
and their common concerns, so indifferent that it was 
found difficult to procure a quorum of States for weeks or 
even months after the day fixed for meeting. Congress 
was impotent, and commanded respect as little as obedi- 
ence. Much distress prevailed in the trading States, and 
the crude attempts which some legislatures made to 
remedy the depression by emitting inconvertible paper, 
by constituting other articles than the precious metals 
legal tender, and by impeding the recovery of debts, 
aggravated the evil, and in several instances led to sedi- 



CHAP. Ill THE ORIGIN OF THE CONSTITUTION 25 

tious outbreaks.^ The fortunes of the country seemed 
at a lower ebb than even during the war with England. 
Sad experience of their internal difficulties, and of 
the contempt with which foreign governments treated 
them, at last produced a feeling that some firmer and 
closer union was needed. A convention of delegates 
from five States met at Annapolis in Maryland in 1786 
to discuss methods of enabling Congress to regulate 
commerce. It drew up a report which condemned the 
existing state of things, declared that reforms were 
necessary, and suggested a further general convention in 
the following year to consider the condition of the Union 
and the needed amendments in its Constitution. Con- 
gress, to which the report had been presented, approved 
it, and recommended the States to send delegates to a 
convention, which should *' revise the Articles of Con- 
federation, and report to Congress and the several legis- 
latures such alterations and provisions therein as shall, 
when agreed to in Congress and confirmed by the St^-tes, 
render the Federal Constitution adequate to the exigencies 
of government and the preservation of the Union." ^ 

^ Rhode Island was the most conspicuous offender. This singular little 
commonwealth, whose area is 1085 square miles (less than that of Ayrshire 
or Antrim), is of all the Ameiican States that which has furnished the most 
abundant analogies to the Greek republics of antiquity, and which best 
deserves to have its annals treated of by a philosophic historian. A 
curious feature in its politics is the frequent hostility of the agricultural 
party in the country to the commercial population in the towns which 
was at its height in 1788. By making herself an alarming example of 
what the unbridled rule of the multitude may come to, Rhode Island 
did much to bring the other States to adopt that Federal Constitution 
which she was herself the last to accept. See the remarks of Mr. M. 
Smith, Elliot's Debater, ii. 335. 

2 The insurrection then raging in Massachusetts may have helped to 
stimulate Congress to prompt action, for it revealed the want of strength 
in the State governments. 

Mr. Justice Miller remarks with reference to the origin of the Anna- 
polis Convention, "It is not a little remarkable that the suggestion which 
finally led to the relief, without which as a nation we must soon have 



i^ 



26 THE NATIONAL GOVERNMENT parti 

The Convention thus summoned met at Philadelphia 
on the 14th May 1787, became competent to proceed to 
business on May 25th, when seven States were repre- 
sented, and chose George Washington to preside.^ Dele- 
gates attended from every State but Rhode Island, and 
these delegates, unlike those usually sent to Congress, 
were the leading men of the country, influential in their 
several States, and now filled with a sense of the need 
for comprehensive reforms. The instructions they had 
received limited their authority to the revision of the 
Articles of Confederation and the proposing to Congress 
and the State legislatures such improvements as were re- 
quired therein.^ J^ut mth admira ble b oldne ss, boldness 
doubly admirable in EngSEmen~andlawye^^ 
ifltimately^esoivedr^to di^^ these" restrictions, and 

perished, strongly supports the philosophical maxim of modem times, that 
of all the agencies of civilization and progress, commerce is the most effi- 
cient What our deranged finances, our discreditable failure to pay our 
debts, and the sufferings of our soldiers, could not force the several States 
to attempt, was brought about by a desire to be released from the evils of 
an unregulated and burdensome commercial intercourse." — Memorial Ora- 
tion at the celebration of the hundredth anniversary of the promulgation 
of the Constitution, 17th Sept. 1887. 

^ For some remarks on Constitutional Conventions in the United 
States see the note to this chapter at the end of this volume. 

-^ It was strongly urged when the draft Constitution came up for 
ratification in the State Conventions that the Philadelphia Convention had 
no power to do more than amend the Articles of Confederation. To these 
objections Mr. Wilson of Pennsylvania made answer as follows : — " The 
business we are told which was intrusted to the late Convention was merely 
to amend the present Articles of Confederation. This observation has been 
frequently made, and has often brought to my mind a story that is related 
of Mr. Pope, who it is well known was not a little deformed. It was 
customary for him to use this phrase, * God mend me,* when any little 
accident happened. One evening a link boy was lighting him along, and 
coming to a gutter the boy jumped nimbly over it. Mr. Pope called to 
him to turn, adding * God mend me ! ' Tlie arch rogue, turning to light 
him, looked at him and repeated * God mend you ! He would sooner 
make half a dozen new ones.' This would apply to the present Con- 
federation, for it would be easier to make another than to amend this." — 
Elliot's Debates, Pennsylvania Convention, vol. ii. p. 472. 



CHAP. Ill THE ORIGIN OF THE CONSTITUTION 27 

to prepare a wholly new Constitution, to be considered 
and ratified neither by Congress nor by the State legis- 
latures, but by the peoples of the several States. 

This famous assembly, which consisted of fifty-five 
delegates, thirty-nine of whom signed the Constitution 
which it drafted, sat nearly five months, and expended 
upon its work an amount of labour and thought commen- 
surate with the magnitude of the task and the splendour 
of the result The debates were secret,^ and fortunately 
so, for criticism from without might have imperilled a 
work which seemed repeatedly on the point of breaking 
down, so great were the difficulties encountered from the 
divergent sentiments and interests of different parts of 
the country, as well as of the larger and smaller States.^ 
The. records of the Convention were left in the hands of 
Washington, who in 1796 deposited them in the State 
Department. In 1819 they were published along with 
the notes of the discussions kept by James Madison 
(afterwards twice President), who had proved himself 
one of the ablest and most useful members of the body. 
From these official records and notes ^ the history of 



^ The fact that the country did not complain of this secrecy is the 
hest proof of the confidence felt in the members of the Convention. 

2 Benjamin Franklin, who was one of the delegates from Pennsylvania 
(being then eighty-one years of age), was so much distressed at the 
difficulties which arose and the prospect of failure that he proposed that 
the Convention, as all human means of obtaining agreement seemed to be 
useless, should open its meetings with prayer. The suggestion, remarkable 
as coming from one so weU known for his sceptical opinions, might have ^ 
been adopted but for the fear that the outside public might thus learn 
how grave the position of affairs was. The original of Franklin's pro- 
position, written in his own still clear and firm hand, with his note stating 
that only three or four agreed with him, is preserved in the State Depart- 
ment at Washington, where may be also seen the original draft of the 
Constitution with the signatures of the thirty-nine delegates. 

^ They are printed in the work called Elliot's Debates (Philadel- 
phia, 1861), which also contains the extremely interesting debates in some 
of the State Conventions which ratified the Constitution. 



28 THE NATIONAL GOVERNMENT parti 

the Convention has been written, and may be found 
in the instructive volumes of Mr. G. T. Curtis and of 
Mr. George Bancroft, now the patriarch of American 
literature. 

It is hard to-day, even for Americans, to realize 
how enormous those difficulties were. The Conven- 
tion had not only to create de novo, on the most 
slender basis of pre-existing national institutions, a 
national government for a widely scattered people, but 
they had in doing so to respect the fears and jealousies 
and apparently irreconcilable interests of thirteen 
separate commonwealths, to all of whose governments 
it was necessary to leave a sphere of action wide enough 
to satisfy a deep-rooted local sentiment, yet not so 
wide as to imperil national unity. ^ Well might Hamil- 
ton say : " The establishment of a Constitution, in time 
of profound peace, by the voluntary consent of a whole 
people, is a prodigy to the completion of which I look 
forward with trembling anxiety." ^ 

^ The nearest parallels to such a Federal Union as that formed in 
1789 were then to be found in the Achaean and Lycian Leagues, which, 
however, were not mere leagues, but federated nations. Both are referred 
to by the authors of the Federalist (see post), but their knowledge was 
evidently scanty. The acuteness of James Wilson had perceived that 
the two famous confederations of modem Europe did not supply a model 
for America. He observed in the Pennsylvania Convention of 1788 : 
" The Swiss cantons are connected only by alliances. The United 
Netherlands are indeed an assemblage of societies ; but this assem- 
blage constitutes no new one, and therefore it does not correspond 
with the full definition of a Confederate Republic." — Elliot's DehaJtes, 
voL ii. p. 422. The Swiss Confederation has now become a Republic at 
once Federal and national, coming in most respects very near to its Ameri- 
can model 

2 Federalist, No. Ixxxv. He quotes the words of David Hume 
(Essays ; " The Rise of Arts and Sciences '0 '- " To balance a large State or 
society, whether monarchical or republican, on general laws, is a work of 
so great difficulty that no human genius, however comprehensive, is able 
by the mere dint of reason and reflection to effect it. The judgments of 
many must unite in the work : experience must guide their labour ; time 



y 



CHAP, III THE ORIGIN OF THE CONSTITUTION 29 

It was even a disputable point whether the colonists 
were already a nation or only the raw material out of 
which a nation might be formed.^ There were elements 
of unity, there were also elements of diversity. All 
spoke the same language. All, except a few descendants 
of Dutchmen and Swedes in New York and Delaware, 
some Germans in Pennsylvania, some children of French 
Huguenots in New England and the middle States, 
belonged to the same race.^ All, except some Roman 
Catholics in Maryland, professed the Protestant religion. 
All were governed by the same English Common Law, 
and prized it not only as the bulwark which had 
sheltered their forefathers from the oppression of the 
Stuart kings, but as the basis of their more recent claims 
of right against the encroachments of George III. 
and his colonial officers. In ideas and habits of life 
there was less similarity, but all were republicans, 
managing their aflfairs by elective legislatures, attached 
to local self-government, and animated by a common 
pride in their successful resistance to England, which 
they then hated with a true family hatred, a hatred to 
which her contemptuous treatment of them added a 
sting. 

must bring it to perfection ; and the feeling of inconveniences must 
correct the mistakes which they inevitably fall into in their first trials and 
experiments.'' Words strikingly verified in the history of the United 
States from 1777 downwards. 

1 Mr. Wilson said in the Pennsylvania Convention of 1787 : "By 
adopting this Constitution we shall become a nation : we are not now 
one. We shall form a national character : we are now too dependent 
on others." He proceeds with a remarkable prediction of the influence 
which American freedom would exert upon the Old World. — Elliot's 
Debates, vol. ii. p. 526. 

2 The Irish, a noticeable element in North Carolina and parts 
of Pennsylvania, Virginia, and New Hampshire, were not Catholic Celts 
but Scoto-Irish Presbyterians from Ulster, who, animated by resentment 
at the wrongs and religious persecution they had suffered at home, had 
been among the foremost combatants in the Revolutionary War. 



30 THE NATIONAL GOVERNMENT parti 

On the other hand their geographical position made 
communication very difficult. The sea was stormy in 
winter, the roads were bad, it took as long to travel by 
land from Charleston to Boston as to cross the ocean to 
Europe, nor was the journey less dangerous. The 
wealth of some States consisted in slaves ; of others in 
shipping; while in others there was a population of 
small farmers, characteristically attached to old habits. 
Manufactures had hardly begun to exist. The sentiment 
of local independence showed itself in intense suspicion 
of any external authority ; and most parts of the country 
were so thinly peopled that the inhabitants had lived 
practically without any government, and thought that 
in creating one they would be forging fetters for them- 
selves. But while these diversities and jealousies made 
union difficult, two dangers were absent which have 
beset the framers of constitutions for other nations. 
There were no reactionary conspirators to be feared, for 
every one prized liberty and equality. There were no 
questions between classes, no animosities against rank 
and wealth, for rank and wealth did not exist. 

It was inevitable under such circumstances that the 
Constitution, while aiming at the establishment of a dur- 
able central power, should pay great regard to the existing 
centrifugal forces. It was and remains what its authors 
styled it, eminently an instrument of compromises ; it is 
perhaps the most successful instance in history of what 
a judicious spirit of compromise may effect.^ Yet out of 

^ Hamilton observed of it in 1788 : ** The result of the deliberations 
of all collective bodies must necessarily be a compound as well of the 
errors and prejudices as of the good sense and wisdom of the individuals 
of whom they are composed. The compacts which are to embrace 
thirteen distinct States in a common bond of amity and union must as 
necessarily be a compromise of as many dissimilar interests and in- 
clinations. How can perfection spring from such materials ? " — Federalist^ 
No. Ixxxv. 



CHAP. Ill THE ORIGIN OF THE CONSTITUTION 31 

the points which it was for this reason obliged to 
leave unsettled there arose fierce controversies, which 
after two generations, when accumulated irritation 
and incurable misunderstanding had been added to the 
force of material interests, burst into flame in the War 
of Secession. 

The draft Constitution was submitted, as its last 
article provided, to conventions of the several States 
{i.e. bodies specially chosen by the people for the purpose) 
for ratification. It was to come into eflPect as soon as 
nine States had ratified, the efifect of which would have 
been, in case the remaining States, or any of them, 
had rejected it, to leave such States standing alone in 
the world, since the old Confederation was of course 
superseded and annihilated. Fortunately all the States 
did eventually ratify the new Constitution, but two of 
the most important, Virginia and New York,^ did 
not do so till the middle of 1788, after nine others 
had already accepted it ; and two. North Carolina and 
Rhode Island, at first refused, and only consented to 
enter the new Union more than a year later, when 
the government it had created had already come into 
operation.^ 

There was a struggle everywhere over the adoption 
of the Constitution, a struggle which gave birth to the 
two great parties that for many years divided the 

1 Virginia was then mucli the largest State (population in 1790, 
747,610). New York was reckoned among the smaller States (population 
340,120) but her central geographical position made her adhesion ex- 
tremely important. 

2 Mr. Justice Miller observes that the refusal of Rhode Island seems 
to have been largely due to her desire that ** her superior advantages of 
location, and the possession of what was then supposed to be the best 
harbour on the Atlantic coast, should not be subjected to the control of a 
Congress which was by that instrument expressly authorized to regulate 
commerce with foreign nations, and provide that no preference should be 
given to the ports of any State." — Memorial Oration, ut supra. 



THE NATIONAL GOVERNMENT parti 



American people. The chief source of hostility was the 
belief that a strong central government endangered 
both the rights of the States and the liberties of the 
individual citizen. Freedom, it was declared, would 
perish, freedom rescued from George III. would perish 
at the hands of her own children.^ Consolidation (for 
the word centralization had not yet been invented) 
would extinguish the State governments and the local 
institutions they protected. The feeling was very bitter, 
and in some States, notably in Massachusetts and New 
York, the majorities were dangerously narrow. Had the 
decision been left to what is now called '' the voice of 
the people," that is, to the mass of the citizens all over 
the country, voting at the polls, the voice of the people 
would probably have pronounced against the Constitu- 
tion.^ But this modern method of taking the popular 
verdict had not been invented. The question was 
referred to convention.s in the several States. The con- 
ventions were composed of able men, who listened to 
weighty arguments, and were themselves influenced by 
the authority of their leaders. The judgment of the 
wise prevailed over the prepossessions of the multitude. 
Yet this judgment would hardly have prevailed but for 
a cause which is apt to be now overlooked. This was 
the dread of foreign powers.^ The United States had at 

1 In the Massachusetts Convention of 1788 Mr. Nason delivered himself 
of the following pathetic appeal : ** And here, sir, I beg the indulgence of 
this honourable body to permit me to make a short apostrophe to Liberty. 
Liberty, thou greatest good ! thou fairest property ! with thee I wish to 
live — with thee I wish to die ! Pardon me if I drop a tear on the peril 
to which she is exposed. I cannot, sir, see this highest of jewels tar- 
nished — a jewel worth ten thousand worlds ; and shall we part with it so 
soon ? Oh no." — Elliot's Debates^ ii. 133. 

2 Especially if the question had been voted on everywhere upon the 
same day. The later decisions in doubtful States were influenced by the 
approval which other States had already given. 

3 The other chief cause was the economic distress and injury to trade 



CHAP. Ill THE ORIGIN OF THE CONSTITUTION 33 

that time two European monarchies, Spain and England, 
as its neighbours on the American continent. France 
had lately held territories to the north of them in 
Canada, and to the south of them in Louisiana.^ She 
had been their ally against England, she became in a 
few years again the owner of territories on the lower 
Mississippi. The fear of foreign interference, the sense 
of weakness, both at sea and on land, against the military 
monarchies of Europe, was constantly before the mind 
of American statesmen, and made them anxious to secure 
at all hazards a national government capable of raising 
an army and navy, and of speaking with authority on 
behalf of the new republic. It is remarkable that the 
danger of European aggression or complications was far 
more felt in the United States from 1783 down till 
about 1820, than it has been during the last half century 
when steam has brought Europe five times nearer than 
it then was. 

Several of the conventions which ratified the Con- 
stitution accompanied their acceptance with an earnest 
recommendation of various amendments to it, amend- 
ments designed to meet the fears of those who thought 
that it encroached too far upon the liberties of the 
people. Some of these were adopted, immediately after 
the original instrument had come into force, by the 
method it prescribes, viz. a two-thirds majority in Con- 
consequent on the disorganized condition of several States. See the 
observations of Mr. Wilson in the Pennsylvania Convention (Elliotts 
Debates, iL 524). He shows that the case was one of necessity, and 
winds up with the remark, " The argument of necessity is the patriot's 
defence as well as the tyrant's plea." 

1 The vast territory then called Louisiana was transferred by France 
to Spain in 1762, but Spanish government was not established there till 
1789. It was ceded by Spain to France in 1800, and purchased by the 
United States from Napoleon in 1803. Spain held Florida from its 
discovery till 1819, when she sold it to the United States. 

VOL. I D 



34 THE NATIONAL GOVERNMENT parti 

gress and a majority in three-fourths of the States. 
They are the amendments of 1791, ten in number, and 
they constitute what the Americans, following a venerable 
English precedent, call a Bill or Declaration of Rights. 

The Constitution of 1789^ deserves the veneration y 
with which the Americans have been accustomed to regard / 
it. It is true that many criticisms have been passed<^ 
upon its arrangement, upon its omissions, upon the arti-^ 
ficial character of some of the institutions it creates./ 
Recognizing slavery as an institution existing in some 
States, and not expressly negativing the right of a 
State to withdraw from the Union, it has been charged 
with having contained the germ of civil war, though 
that germ took seventy years to come to maturity. 
And whatever success it has attained must be in large 
measure ascribed to the political genius, ripened by long 
experience, of the Anglo-American race, by whom it has 
been worked, and who might have managed to work 
even a worse drawn instrument. Yet, after all de- 
ductions, it ranks above every other written con- 
stitution for the intrinsic excellence of its scheme, 
its adaptation to the circumstances of the people, 
the simplicity, brevity, and precision of its language, 
its judicious mixture of definiteness in principle 
with elasticity in details. ^ One is therefore induced 

^ It is hard to say whether one ought to caU the Constitution after 
the year 1787, when it was drafted, or the year 1788, when it was 
accepted by the requisite number of States, or the year 1789, when it took 
full effect, the Congress of the Confederation having fixed the first Wed- 
nesday in March in that year as the day when it should come into force. 
The year 1789 has the advantage of being easily remembered, because it 
coincides with the beginning of the great revolutionary movements of 
modern Europe. The Confederation may be taken to have expireil with 
the expiry of its Congress, and its Congress died for want of a quorum. 

- The literary Bostonians laid hold at once of its style as proper for 
admiration. Mr. Ames said in the Massachusetts Convention of 1788, 
"Considered merely as a literary performance, the Constitution is an 



CHAP. Ill THE ORIGIN OF THE CONSTITUTION 35 

to ask, before proceeding to examine it, to what 
causes, over and above the capacity of its authors, and 
the patient toil they bestowed upon it, these merits are 
due, or in other words, what were the materials at the 
command of the Philadelphia Convention for the achiev- 
ment of so great an enterprise as the creation of a nation 
by means of an instrument of government. The 
American Constitution is no exception to the rule that 
everything which has power to win the obedience and 
respect of men must have its roots deep in the past, and 
that the more slowly every institution has grown, so 
much the more enduring is it likely to prove. There is 
little in that Constitution that is absolutely new. There 
is much that is as old as Magna Charta. 

The men of the Convention had the experience of the 
English Constitution. That Constitution, very diflPerent 
then from what it is now, was even then not quite what 
they thought it. Their view was tinged not only by recol- 
lections of the influence exercised by King George the 
Third, an influence due to transitory causes, but which 
made them overrate its monarchical element,^ but also 
by the presentation of it which they found in the work 
of Mr. Justice Blackstone. He, as was natural in a 
lawyer and a man of letters, described rather its theory 
than its practice, and its theory was many years behind 
its practice. The powers and functions of the cabinet, 
the overmastering force of the House of Commons, the 
intimate connection between legislation and administra- 

honour to our country. Legislators have at length condescended to speak 
the language of philosophy." — Elliot's Debates, ii. 55. 

^ There is always a tendency in colonists (perceptible even now in the 
works of such a writer as the Canadian publicist, Mr. Todd) to over- 
estimate the importance of the Crown, whose conspicuous position as the 
authority common to the whole empire makes it an object of special 
interest and respect to persons living at a distance. It touches their 
imagination, whereas assemblies excite their criticism. 



36 THE NATIONAL GOVERNMENT parti 

tion, these which are to us now the main characteristics 
of the English Constitution were still far from fully 
developed. But in other points of fundamental import- 
ance they appreciated and turned to excellent account 
its spirit and methods. 

They had for their oracle of political philosophy the 
treatise of Montesquieu on the Spirit of Laws, which, 
published anonymously at Geneva forty years before, 
had won its way to an immense authority on both sides 
of the ocean.^ Montesquieu, contrasting the private as 
well as public liberties of Englishmen with the despot- 
ism of continental Europe, had taken the Constitution of 
England as his model system, and had ascribed its 
merits to the division of legislative, executive, and judi- 
cial functions which he discovered in it, and to the 
system of checks and balances whereby its equilibrium 
seemed to be preserved. No general principle of politics 
laid such hold on the constitution-makers and statesmen 
of America as the dogma that the separation of these 
three functions is essential to freedom. It had already 
been made the groundwork of several State constitutions. 
It is always reappearing in their writings : it was never 
absent from their thoughts. Of the supposed influence 
of other continental authors, such as Rousseau, or even 
of English thinkers such as Burke, there are few direct 
traces in the Federal Constitution or in the classical 
contemporaneous commentary on and defence of it" 
which we owe to the genius of Hamilton and his hardly 
less famous coadjutors, Madison and Jay. But we need 

^ Montesquieu is repeatedly quoted by the speakers in the various 
State conventions, whose discussions have come down to us. See ^o«^, 
Chapter XXV. 

2 Tht Federalist^ a series of papers published in the New York news- 
papers in advocacy of the Federal Constitution when the question of 
accepting it was coming before the New York State Convention. 



CHAP. Ill THE ORIGIN OF THE CONSTITUTION 37 

only turn to the Declaration of Independence and the 
original constitutions of the States, particularly the 
Massachusetts Constitution of 1780, to perceive that 
abstract theories regarding human rights had laid firm 
hold on the national mind. Such theories naturally 
expanded with the practice of republican government. 
But the influence of France and her philosophers belongs 
chiefly to the years succeeding 1789, when Jeffferson, 
who was fortunately absent in Paris during the Consti- 
tutional Convention, headed the democratic propaganda. 
Further, they had the experience of their colonial and 
State governments, and especially, for this was freshest 
and most in point, the experience of the working of the 
State Constitutions, framed at or since the date when 
the colonies threw oflP their English allegiance. Many of 
the Philadelphia delegates had joined in preparing these 
instruments : all had been able to watch and test their 
operation. They compared notes as to the merits, 
tested by practice, of the devices which their States had 
respectively adopted,^ They had the inestimable advan- 
tage of knowing written or rigid constitutions in the 
concrete ; that is to say, of comprehending how a system 
of government actually moves and plays under the con- 
trol of a mass of statutory provisions defining and 
limiting the powers of its several organs. The so-called 
Constitution of England consists largely of customs, 
precedents, traditions, understandings, often vague and 
always flexible. It was quite a different thing, and 
for the purpose of making a constitution for the 
American nation an even more important thing, to have 
lived under and learnt to work systems determined by 

^ There are frequent references in the Federalist to the State Consti- 
tutions (see especially Letters xlvii. and xlviii.), and the record of the 
debates in the Convention shows that many of the proposals made were 
directly drawn from these Constitutions. 



38 THE NATIONAL GOVERNMENT ^^fl^f^RT 



JK 



the hard and fast lines of a single document naving the 
full force of law, for this experience taught them how 
much might safely be included in such a document and 
how far room must be left under it for unpredictable 
emergencies and unavoidable development.^ 

Lastly, they had one principle of the English com- 
mon law whose importance deserves special mention, the 
principle that an act done by any official person or law- 
making body in excess of his or its- legal competence is 
simply void. Here lay the key to the difficulties which 
the establishment of a variety of authorities not subor- 
dinate to one another, but each supreme in its own 
defined sphere, necessarily involved. The application of 
this principle made it possible not only to create a 
national government which should leave free scope for 
the working of the State governments, but also so to 
divide the powers of the national government among 
various persons and bodies as that none should absorb or 
overbear the others. By what machinery these objects 
were attained will sufficiently appear when we come to 
consider the effect of a written or rigid constitution em- 
bodjdng a fundamental law, and the functions of the 
judiciary in expounding and applying such a law.- 

^ The novelty of written constitutions is dwelt upon with great force 
by James Wilson in the Pennsylvania Convention. — Elliot's Debates, voL ii. 
2 See post, Chapters XXIII. and XXXIII. 




CHAPTER IV 

NATURE OF THE FEDERAL GOVERNMENT 

The acceptance of the Constitution of 1789 made the 
American people a nation. It turned what had been a 
League of States into a Federal State,^ by giving it a 
National Government with a direct authority over all 
citizens. But as this national government was not to 
supersede the governments of the States, the problem 
which the Constitution-makers had to solve was two- 
fold. They had to create a central government. They 
had also to determine the relations of this central 
government to the States as well as to the individual 
citizen. An exposition of the Constitution and criticism 
of its working must therefore deal with it in these two 
aspects, as a system of national government built up 
of executive powers and legislative bodies, like the 
monarchy of England or the republic of France, and as 
a Federal system linking together and regulating the 
relations of a number of commonwealths which are for 
certain purposes, but for certain purposes only, sub- 
ordinated to it. It will conduce to clearness if these 
two aspects are kept distinct ; and the most convenient 

1 The distinction is happily expressed in German by the words 
Staatenbund and Bundesstaat. English has unfortunately no equally 
concise expressions. 



40 THE NATIONAL GOVERNMENT parti 

course will be to begin with the former, and first to 
describe the American system as a National system, 
leaving its Federal character for the moment on one side. 

It must, however, be remembered that the Consti- 
tution does not profess to be a complete scheme of 
government, creating organs for the discharge of all 
the functions and duties which a civilized community 
undertakes. It presupposes the State governments. 
It assumes their existence, their wide and constant 
activity. It is a scheme designed to provide for the 
discharge of such and so many functions of government 
as the States do not already possess and discharge. It 
is therefore, so to speak, the complement and crown of 
the State Constitutions, which must be read along with 
it and into it in order to make it cover the whole field 
of civil government, as do the Constitutions of such 
countries as France, Belgium, Italy. 

The administrative, legislative, and judicial functions 
for which the Federal Constitution provides are those 
relating to matters which must be deemed common to the 
whole nation, either because aU the parts of the nation are 
alike interested in them, or because it is only by the nation 
as a whole that they can be satisfactorily undertaken. 
The chief of these common or national matters are ^ — 

War and peace : treaties and foreign relations 

generally. 
Army and navy. 
Federal courts of justice. 
Commerce, foreign and domestic. 

1 The full list will be found in the Constitution, Art. i. § 8 (printed 
in the Appendix), with which may be compared the British North 
America Act 1867 (30 and 31 Vict. cap. 8), and the Federal Council of 
Australasia Act 1885 (48 and 49 Vict cap. 60), and the Swiss Constitution 
of 1874 (Arts. 8, 22, 30, 42, 54, 64, 67-70). 



CHAP. IV NATURE OF THE FEDERAL GOVERNMENT 41 

Currency. 

Copyright and patents. 

The post-office and post roads. 

Taxation for the foregoing purposes, and for the 
general support of the Government. 

The protection of citizens against unjust or discrimi- 
nating legislation by any State. ^ 

This list includes the subjects upon which the 
national legislature has the right to legislate, the 
national executive to enforce the Federal laws and 
generally to act in defence of national interests, the 
national judiciary to adjudicate. All other legislation 
and administration is left to the several States, without 
power of interference by the Federal legislature or 
Federal executive. - 

Such then being the sphere of the National govern- 
ment, let us see in what manner it is constituted, of 
what departments it consists. ^ . 

The framers of this government set before them- 
selves four objects as essential to its excellence, viz. — 

Its vigour and efficiency. 

The independence of each of its departments (as 
being essential to the permanency of its form). 

Its dependence on the people. 

The security under it of the freedom of the indivi- 
dual. 

The first of these objects they sought by creating a 
strong executive, the second by separating the legis- 
lative, executive, and judicial powers from one another, 

1 Amendments xiv. and xv. 

2 This list is not intended to be exhaustive, because the respective 
limits of Federal and State action are fully explained in subsequent 
chapters. It is given here as a provisional list, sufficient to show in a 
general way what are the main functions of the national government 



42 THE NA TIONAL GO VERNMENT part i 

and by the contrivance of various checks and balances, 
the third by making all authorities elective and elections 
frequent, the fourth both by the checks and balances 
aforesaid, so arranged as to restrain any one department 
from tyranny, and by placing certain rights of the 
citizen under the protection of the written Constitution. 
They had neither the rashness nor the capacity 
necessary for constructing a Constitution a priori. 
There is wonderfully little genuine inventiveness in the 
world, and perhaps least of all has been shown in the 
sphere of political institutions. These men, practical 
politicians who knew how infinitely difficult a business 
government is, desired no bold experiments. They 
preferred, so far as circumstances permitted, to walk in 
the old paths, to follow methods which experience had 
tested.^ Accordingly they started from the system on 
which their own colonial governments, and afterwards 
their State governments, had been conducted. This 
system bore a general resemblance to the British Consti- 
tution ; and in so far it may with truth be said that 
the British Constitution became a model for the new 
national government. They held England to be the 
freest and best -governed country in the world, but 
were resolved to avoid the weak points which had 
enabled King George III. to play the tyrant, and 
which rendered English liberty, as they thought, far 
inferior to that which the constitutions of their own 
States secured. With this venerable mother, and these 

^ Mr. Lowell has said with ecjual point and truth of the men of the 
Convention : " They had a profound disbelief in theory and knew In^tter 
than to commit the folly of breaking with the past Thry were not 
seduced by the French fallacy that a new system of government couKl be 
ordered like a new suit of clothes. They would as soon have thought of 
ordering a suit of flesh and skin. It is only on the roaring hjom of time 
that the stuff is woven for such a vesture of their thought and experience 
as they were meditating." — Address on Democracy, delivered Oct. 6, 1884. 



CHAP. IV NATURE OF THE FEDERAL GOVERNMENT 43 

children, better in their judgment than the mother, 
before their eyes, they created an executive magis- 
trate, the President, on the model of the State 
Governor, and of the British Crown. They created 
a legislature of two Houses, Congress, on the model of 
the two Houses of their State legislatures, and of the 
British Parliament. And following the precedent of 
the British judges, irremovable except by the Crown 
and Parliament combined, they created a judiciary 
appointed for life, and irremovable save by impeach- 
ment.^ 

In these great matters, however, as well as in many 
lesser matters, they copied not so much the Constitution 
of England as the constitutions of their several States, 
in which, as was natural, many features of the English 
Constitution had been embodied. It has been truly 
said that nearly every provision of the Federal Consti- 
tution that has worked well is one borrowed from or ' 
suggested by some State constitution ; nearly ever}^ 
provision that has worked badly is one which the 
Convention, for want of a precedent, was obliged to 
devise for itself. To insist on this is not to detract from 
the glory of that illustrious body, for if we are to credit 
them with less inventiveness than has sometimes been 
claimed for them, we must also credit them with a 
double portion of the wisdom which prefers experience to 
a 'priori theory, and the sagacity which selects the best 

^ Minor differences between the English and American systems are 
that the American Federal judge is appointed by the President, " with 
the advice and consent of the Senate," an English judge by the Crown 
alone : an American judge is impeachable by the House of Representa- 
tives, and tried by the Senate, an English judge is removable by the 
Crown on an address by both Houses. 

In many States a State judge is removable by the legislature or by 
the governor on an address by the legislature, a provision which has 
obviously been borrowed from England. 



44 THE NATIONAL GOVERNMENT parti 

materials from a mass placed before it, aptly combining 
them to form a new structure.^ 

Of minor divergences between their work and the 
British Constitution I shall speak subsequently. But 
one profound difference must be noted here. The 
British Parliament had always been, was then, and 
remains now, a sovereign and constituent assembly. 
It can make and unmake any and every law, change 
the form of government or the succession to the crown, 
interfere with the course of justice, extinguish the most 
sacred private rights of the citizen. Between it and the 
people at large there is no legal distinction, because the 
whole plenitude of the people's rights and powers resides 
in it, just as if the whole nation were present within the 
chamber where it sits. In point of legal theory it is 
the nation, being the historical successor of the Folk 
Moot of our Teutonic forefathers. Both practically and 
legally, it is to-day the only and the sufficient depositary 
of the authority of the nation ; and is therefore, within 
the sphere of law, irresponsible and omnipotent. 

In the American system there exists no such body. 
Not merely Congress alone, but also Congress and the 
President conjoined, are subject to the Constitution, and 
cannot move a step outside the circle which the Con- 
stitution has drawn around them. If they do, they 
transgress the law and exceed their powers. Such acts 
as they may do in excess of their powers are void, and 
may be, indeed ought to be, treated as void by the 
meanest citizen. The only power which is ultimately 
sovereign, as the British Parliament is always and 

^ This truth has been worked out with much force and fulness by 
Mr. Alexander Johnson, in an article in the New Princeton Review 
for September 1887 (published since the text of this chapter was wTitten), 
some extracts from which will be found in a note at the end of this 
volume. 



CHAP. IV NATURE OF THE FEDERAL GOVERNMENT 45 

directly sovereign, is the people of the States, acting in 
the manner prescribed by the Constitution, and capable 
in that manner of passing any law whatever in the form 
of a constitutional amendment. 

This fundamental divergence from the British system 
is commonly said to have been forced upon the men of 
1787 by the necessity, in order to safeguard the rights 
of the several States, of limiting the competence of the 
national government.^ But even without this uecessity, 
even supposing there had been no States to be protected, 
the jealousy which the American people felt of those 
whom they chose to govern them, their fear lest one 
power in the government should absorb the rest, their 
anxiety to secure the primordial rights of the citizens 
from attack, either by magistrate or by legislature, 
would doubtless have led, as happened with the earlier 
constitutions of revolutionary France, to the creation of 
a supreme constitution or fundamental instrument of 
government, placed above and controlling the national 
legislature itself They had already such fundamental 
instrument in the charters of the colonies, which had 
passed into the constitutions of the several States ; and 
they would certainly have followed, in creating their 
national constitution, a precedent which they deemed 
so precious. 

The subjection of all the ordinary authorities and 
organs of government to a supreme instrument express- 
ing the will of the sovereign people, and capable of 

1 It is often assumed by writers on constitutional subjects that a 
Federal Government presupposes a written or rigid constitution. This 
is not necessarily so. There have been federations with no fundamental 
rigid constitution (the Achaean League had apparently none) ; and it is 
clear that in America such a fundamental document would in any case 
have been created to define and limit the powers of each department of 
government. 



46 THE NA TIONAL GO VERNMENT part i 

being altered by them only, has been usually deemed 
the most remarkable novelty of the American system. 
But it is merely an application to the wider sphere of 
the nation, of a plan approved by the experience of the 
several States. And the plan had, in these States, been 
the outcome rather of a slow course of historical develop- 
ment than of conscious determination taken at any one 
point of their progress from petty settlements to 
powerful commonwealths. Nevertheless, it may well 
be that the minds of the leaders who guided this 
development were to some extent influenced and in- 
spired by recollections of the English Commonwealth 
of the seventeenth century, which had seen the estab- 
lishment, though for a brief space only, of a genuine 
supreme or rigid constitution, in the form of the 
famous Instrument of Government of a.d. 1653, and 
some of whose sages had listened to the discourses in 
which James Harrington, one of the most prescient 
minds of that great age, showed the necessity for such 
a constitution, and laid down its principles.^ 

We may now proceed to consider the several depart- 
ments of the National Government. It will be simplest 
to describe each separately, and then to examine the 
relations of each to the others, reserving for subsequent 
chapters an account of the relations of the National 
Government as a whole to the several States. 

^ A most interesting analysis of Harrington's views and inquiry into 
their influence on the development of the American Constitutions may 
be found in an article by Professor Theodore W. D wight in the American 
Political Science Quarterly for March 1887. Harrington 8Ugge8te<l that 
the Constitution to be drawn up for England should be subscribed by the 
people themselves, so as to base it on their consent. 



CHAPTER V 



THE PRESIDENT 



Every one who undertakes to describe the American 
system of government is obliged to follow the American 
division of it into the three departments — Executive, 
Legislative, Judicial. I begin with the executive, as the 
simplest of the three.. 

The President is the creation of the Constitution 
of 1789. Under the Confederation there was onlj'' a 
presiding officer of Congress, but no head of the 
nation. 

Why was it thought necessary to have a President 
at all ? The fear of monarchy, of a strong government, 
of a centralized government, prevailed widely in 1787. 
George III. was an object of bitter hatred : he remained 
a bogey to succeeding generations of American children. 
The Convention found it extremely hard to devise a 
satisfactory method of choosing the President, nor has 
the method they adopted proved satisfactory. That 
a single head is not necessary to a republic might 
have been suggested to the Americans by those ancient 
examples to which they loved to recur. The experi- 
ence of modern Switzerland has made it still more 
obvious to us now* Yet it was settled very early 
in the debates of 1787 that the central executive 



48 THE NATIONAL GOVERNMENT parti 

authority must be vested in one person ; and the 
opponents of the draft Constitution, while quarrelling 
with his powers, did not accuse his existence. 

The explanation is to be found not so much in the 
wish to reproduce the British Constitution as in the 
familiarity of the Americans, as citizens of the several 
States, with the office of State governor (in some States 
then called President) and in their disgust with the 
feebleness which Congress had shown under the Con- 
federation in its conduct of the war, and, after peace 

• 

was concluded, of the general business of the country. 
Opinion called for a man, because an assembly had been 
found to lack promptitude and vigour. And it may be 
conjectured that the alarms feltj as to the danger from 
one man's predominance were largely allayed by the 
presence of George Washington. Even while the debates 
were proceeding, every one must have thought of him as 
the proper person to preside over the Union as he was 
then presiding over the Convention. The creation of 
the office would seem justified by the existence of a 
person exactly fitted to fill it, one whose established 
influence and ripe judgment would repair the faults then 
supposed to be characteristic of democracy, its impulsive- 
ness, its want of respect for authority, its incapacity for 
consistent policy. 

Hamilton felt so strongly the need for having a 
vigorous executive who could maintain a continuous 
policy, as to propose that the head of the state 
should be appointed for good behaviour, i.e. for life, 
subject to removal by impeachment. The proposal 
was defeated, though it received the support of persons 
so democratically -minded as Madison and Edmund 
Randolph ; but nearly all sensible men, including many 
who thought better of democracy than Hamilton himself 



CHAP. V THE PRESIDENT 49 

did,^ admitted that the risks of foreign war, risks in- 
finitely more serious in the infancy of the Republic than 
they have subsequently proved, required the concentra- 
tion of executive powers into a single hand. And 
the fact that in every one of their commonwealths there 
existed an oflficer in whom the State constitution vested 
executive authority, balancing him against the State 
legislature, made the establishment of a Federal chief 
magistrate seem the obvious course. 

Assuming that there was to be such a magistrate, 
the statesmen of the Convention, like the solid practical 
men they were, did not try to construct him out of their 
own brains, but looked to some existing models. They 
therefore made an enlarged copy of the State governor, 
or to put the same thing differently, a reduced and im- 
proved copy of the English king. He is George III. 
shorn of a part of his prerogative by the intervention of 
the Senate in treaties and appointments, of another 
part by the restriction of his action to Federal affairs, 
while his dignity as well as his influence are diminished 
by his holding office for four years instead of for 
life.^ His salary is too small to permit him either to 
maintain a Court or to corrupt the legislature ; nor 
can he seduce the virtue of the citizens by the gift of 
titles of nobility, for such titles are altogether forbidden. 
Subject to these precautions, he was meant by the 

^ " The disease we are suffering from is democracy," says Hamilton in 
one of his hiter letters. 

* When the Romans got rid of their king, they did not reaUy ex- 
tinguish the office, but set up in their consul a sort of annual king, 
limited not only by the short duration of his power, but also by the 
existence of another consul with equal powers. The Americans hoped to 
restrain their President not merely by the shortness of his term, but also 
by diminishing the power which they left to him ; and this they did by 
setting up another authority to which they entrusted certain executive func- 
tions, making i^ consent necessary to the validity of certain classes of 
the President's executive acts. This is the Senate, whereof more anon. 

VOL. I E 



50 THE NATIONAL GOVERNMENT parti 

constitution-framers to resemble the State governor and 
the British king, not only in being the head of the 
executive, but in standing apart froD^ and above political 
parties. He was to represent the nation as a whole, 
as the governor represented the State commonwealth. 
The independence of his position, with nothing either to 
gain or to fear from Congress, would, it was hoped, leave 
him free to think only of the welfare of the people. 

This idea appears in the method provided for the 
election of a President. To have left the choice of the 
chief magistrate to a direct popular vote over the whole 
country would have raised a dangerous excitement, and 
would have given too much encouragement to candidates 
of merely popular gifts. To have entrusted it to Con- 
gress would have not only subjected the executive to 
the legislature in violation of the principle which requires 
these departments to be kept distinct,^ but have tended 
to make him the creature of one particular faction 
instead of the choice of the nation. Hence the device 
of a double election was adopted, perhaps with a faint 
reminiscence of the methods by which the Doge was 
then still chosen at Venice and the Emperor in Germany. 
The Constitution directs each State to choose a number of 
presidential electors equal to the number of its repre- 
sentatives in both Houses of Congress. Some weeks later, 
these electors meet in each State on a day fixed by law, 
and give their votes in writing for the President and 
Vice-President.^ The votes are transmitted, sealed up, to 

1 See the remarks of Mr. Wilson in the Pennsylvania Convention. 
Elliot's DebateSj vol. ii. p. 511. 

2 Originally the person who received most votes was deemed to have 
been chosen President, and the person who stood second, Vice-President. 
This led to confusion, and was accordingly altered by the twelfth constitu- 
tional amendment, adopted in 1804, which provides that the President 
and Vice-President shall be voted for separately. 



CHAP. V THE PRESIDENT 5 1 

the capital and there opened by the president of the 
Senate in the presence of both Houses and counted. To 
preserve the electW from the influence of faction, it is 
provided that they shall not be members of Congress, 
nor holders of any Federal office. This plan was ex- 
pected to secure the choice by the best citizens of each 
State, in a tranquil and deliberate way, of the man 
whom they in their unfettered discretion should deem 
fittest to be chief magistrate of the Union. Being them- 
selves chosen electors on account of their personal merits, 
they would be better qualified than the masses to select 
an able and honourable man for President. Moreover, 
as the votes are counted promiscuously, and not by 
States, each elector's voice would have its weight. He 
might be in a minority in his own State, but his vote 
would nevertheless tell because it would be added to 
those given by electors in other States for the same 
candidate. 

No part of their scheme seems to have been regarded 
by the constitution -makers of 1787 with more com- 
placency than this,^ although no part had caused them 
so much perplexity. No part has so utterly belied their 
expectations. The presidential electors have become a 
mere cog-wheel in the machine ; a mere contrivance for 
giving effect to the decision of the people. Their personal 
qualifications are a matter of indifference. They have 
no discretion, but are chosen under a pledge — a pledge of 
honour merely, but a pledge which has never (since 
1796) been violated — to vote for a particular candi- 
date. In choosing them the people virtually choose 

1 " The mode of appointment of the chief magistrate of the United 
States is almost the only part of the system which has escaped without 
some censure, or which has received the slightest mark of approbation 
from its opponents." — Federalist, No. Ixvii., cf. No. 1. and the observations 
of Mr. Wilson in the Convention of Pennsylvania. 



52 THE NATIONAL GOVERNMENT parti 

the President, and thus the very thing which the men 
of 1787 sought to prevent has happened, — the Presi- 
dent is chosen by a popular vote. Let us see how 
this happened. 

In the first two presidential elections (in 1789 and 
1792) the independence of the electors did not come 
into question, because everybody was for Washington, 
and parties had not yet been fiilly developed. Yet in * 
the election of 1792 it was generally understood that 
electors of one way of thinking were to vote for Clinton 
as their second candidate (i.e. for Vice-President) and 
those of the other side for John Adams. In the third 
election (1796) no pledges were exacted from electors, 
but the election contest in which they were chosen was 
conducted on party lines, and although, when the voting 
by the electors arrived, some few votes were scattered 
among other persons, there were practically only two 
presidential candidates before the country, John Adams 
and Thomas Jefferson, for the former of whom the 
electors of the Federalist party, for the latter those of 
the Republican (Democratic)^ party were expected to 
vote. The fourth election was a regular party struggle, 
carried on in obedience to party arrangements. Both 
Federalists and Republicans put the names of their 
candidates for President and Vice-President before the 
country, and round these names the battle raged. The 
notion of leaving any freedom or discretion to the elec- 
tors had vanished, for it was felt that an issue so great 
must and could be decided by the nation alone. From 
that day till now there has never been any question of 
reviving the true and original intent of the plan of 

^ The party then called Republican has for the last sixty years or so 
been called Democratic. The party now called Republican did not arise 
till 1854. 



CHAP. V THE PRESIDENT 53 

double election,^ and consequently nothing has ever 
turned on the personality of the electors. They are now 
so little significant that to enable the voter to know for 
which set of electors his party desires him to vote, it is 
found necessary to put the name of the presidential 
candidate whose interest they represent at the top of 
the .voting ticket on which their own names are 
printed. 

The completeness and permanence of this change 
has been assured by the method which now prevails 
of choosing the electors. The Constitution leaves the 
method to each State, and in the earlier days many 
States entrusted the choice to their legislatures. But as 
democratic principles became developed, the practice of 
choosing the electors by direct popular vote, originally 
adopted by Virginia, Pennsylvania, and Maryland, spread 
by degrees through the other States, till by 1832 South 
Carolina was the only State which retained the method 
of appointment by the legislature. She dropped it 
in 1868, and popular election now rules everywhere.^ 
In some States the electors were for a time chosen 
by districts, like members of the House of Repre- 
sentatives. But the plan of choice by a single 
popular vote over the whole of the State found 
increasing favour, seeing that it was in the interest 
of the party for the time being dominant in the State. 
In 1828 Maryland was the only State which clung 

1 In 1876 the suggestion was thrown out that the disputed election of 
that year might be settled by the exercise of free choice on the part of the 
electors ; but the idea found no favour with the politicians. 

* This, however, is merely matter of State law. Any State could go 
back to choice by the legislature. Colorado, not having time, after her 
admission to the Union in 1876, to provide by law for a popular choice 
of electors to vote in the election of a President in the November of that 
year, left the choice to the legislature, but now elects its presidential 
electors by popular vote like the other States. 



54 THE NATIONAL GOVERNMENT parti 

to district voting. She, too, adopted the "general 
ticket " system in 1832, since which year it has been uni- 
versal. Thus the issue comes directly before the people. 
The parties nominate their respective candidates, in man- 
ner to be hereinafter described,^ a tremendous "cam- 
paign" of stump speaking, newspaper writing, street 
parades, and torchlight processions sets in and rages for 
about four months : the polling for electors takes place 
early in November, on the same day over the whole 
Union, and when the result is known the contest is over, 
because the subsequent meeting and voting of the electors 
in their several States is mere matter of form. 

So far the method of choice by electors may seem to 
be merely a roundabout way of getting the judgment of 
the people. It is more than this. It has several singular 
consequences, unforeseen by the framers of the Constitu- 
tion. It has made the election virtually an election by 
States, for the present system of choosing electors by 
"general ticket" over the whole State causes the whole 
weight of a State to be thrown into the scale of one 
candidate, that candidate whose list of electors is carried 
in the given State. Pennsylvania, for instance, with her 
population of four and a half millions, has thirty electoral 
votes. Each party runs its list or " ticket " of thirty 
presidential electors for that State, who are bound to 
vote for the party's candidate, let us say Mr. Blaine or 
Mr. Cleveland. The Republican list (i.e. that which in- 
cludes the thirty Blaine electors) is carried by a majority 
of 473,000 against 392,000. It is of course carried 
entire, if carried at all, because it would be absurd for 
any partisans of Mr. Blaine to vote for some only and 
not for all of the electors whose only function is to 
vote for him. The Blaine list being thus carried, all 

^ See the chapter on National Nominating Conventions in Vol. II. 



CHAP. V THE PRESIDENT 55 

the thirty electoral votes of Pennsylvania are secured 
for Mr. Blaine. The hundreds of thousands of votes 
given by the people for the Democratic list (i.e. for the 
Cleveland electors) do not go to swell the support which 
Mr. Cleveland obtains in other States, but are utterly 
lost. Hence in a presidential election, the struggle con- 
centrates itself in the doubtful States, where the great 
parties are pretty equally divided, and is languid in 
States where a distinct majority either way may be 
anticipated, because, since it makes no diflference whether 
a minority be large or small, it is not worth while to 
struggle hard to increase a minority which cannot be 
turned into a majority. And hence also a man may be, 
and has been,^ elected President by a minority of popular 
votes. 

When such has been the fate of the plan of 1787, 
it need hardly be said that the ideal President, the great 
and good man above and outside party, whom the judi- 

^ This happened in 1876, when Mr. Hayes received, on the showing 

of his own paoiisans, only 4,033,708 popular votes, against 4,285,992 

given for Mr. Tilden, but was elected President by 185 electoral votes 

against 184 for Mr. Tilden. In 1880 Mr. Garfield was elected by 214 

against 155 electoral votes, but had a popular majority of only 4,454,146 

against 4,444,952, less than 10,000 out of the whole Union. In 1860 

Abraham Lincoln received much less than half the total popular vote, but 

had an electoral majority among the presidential electors of 180 against 

123 voting for his various rivals. So neither Polk in 1844, nor 

Taylor in 1848, nor Buchanan in 1856, had an absolute majority of 

the popular vote. In 1884 the whole thirty-six votes of New York 

State were cast for Mr. Cleveland, although his popular majority in 

that State, out of a poll of more than 1,100,000, was just over 1100. 

And as these thirty-six votes turned the election, it was a majority of only 

1100 that determined the issue of the struggle over the whole Union, in 

which nearly 10,000,000 votes were given. 

It is an odd result of the system that the bestowal of the suffrage on 
the negroes has operated against the Republican party which bestowed it. 
The Southern States have in respect of this increase in their voting popu- 
lation received 37 additional presidential votes, and these have in the 
two last elections (1880 and 1884) been all thrown for the Democratic 
candidate. 



56 THE NATIONAL GOVERNMENT part.i 

cious and impartial electors were to choose, has not been 
secured. The ideal was realized once and once only in 
the person of George Washington. His successor in the 
chair (John Adams) was a leader of one of the two great 
parties then formed, the other of which has, with some 
changes, lasted down to our own time. Jeflferson, who 
came next, was the chief of that other party, and his 
election marked its triumph. Nearly every subsequent 
President has been elected as a party leader by a party 
vote, and has felt bound to carry out the policy of the 
men who put him in power. ^ Thus instead of getting 
an Olympian President raised above faction, America 
has, despite herself, reproduced the English system of 
executive government by a party majority, reproduced 
it in a more extreme form, because in England the titular 
head of the State, in whose name administrative acts are 
done, stands in isolated dignity outside party politics. 
The disadvantages of the American plan are patent ; but 
in practice they are less serious than might be expected, 
for the responsibility of a great office and the feeling 
that he represents the whole nation have tended to 
sober and control the President. Except as regards 
patronage, he has seldom, at least since the War of Seces- 
sion, acted as a mere tool of faction, or sought to abuse 
his administrative powers to the injury of his political 
adversaries. 

The Constitution prescribes no limit for the re-eligi- 
bility of the President. He may go on being chosen 

^ John Tyler and Andrew Johnson, both of whom quarrelled with 
their party, were both elected as Vice-Presidents, and succeeded to the 
chair on the death of the persons who had been elected Presidents. James 
Monroe was chosen President in 1820 with practical unanimity ; but this 
was because one of the two parties had for the time been crushed out and 
started no candidate. So also J. Q. Adams, Monroe's successor, can hardly 
be called a party leader. After him the party-chosen Presidents go on 
without interruption. 



CHAP.v THE PRESIDENT 57 

for one four year period after another for the term of his 
natural life. But tradition has supplied the place of law. 
Elected in 1789, Washington submitted to be re-elected 
in 1792. But when he had served this second term he 
absolutely refused to serve a third, urging the risk to 
republican institutions of suflfering the same man to 
continue constantly in office. Jeflferson, Madison, Mon- 
roe, and Jackson obeyed the precedent, and did not seek, 
nor their friends for them, re-election after two terms. 
After them no President was re-elected, except Lincoln, 
down to General Grant. Grant was President from 1869 
to 1873, and again from 1873 to 1877, then came Mr. 
Hayes ; and in 1880 an attempt was made to break the 
unwritten rule in Grant's favour. Each party, as will be 
more frJly explained hereafter, nominates its candidates 
in a gigantic party assembly called the National Conven- 
tion. In the Republican party Convention of 1880 a 
powerful group of the delegates put forward Grant 
for nomination as the party candidate, alleging his 
special services as a ground for giving him the honour of 
a third term. Had there not been among the Repub- 
licans themselves a section personally hostile to Grant, 
or rather to those who surrounded him, the attempt 
might have succeeded, though it would probably have 
involved defeat at the polls. But this hostile section 
found the prepossession of the people against a third 
term so strong that, by appealing to the established 
tradition, they defeated the Grant men in the Conven- 
tion, and obtained the nomination of Mr. Garfield, who 
was victorious at the ensuing election. This precedent 
has been taken as practically decisive for the future, 
because General Grant, though his administration had 
been marked by grave faults, was an exceptionally 
popular figure. A principle affirmed against him is not 



58 THE NATIONAL GOVERNMENT parti 

likely to be departed from in favour of any aspirant 
for many elections to come. 

The Constitution (Amendment xii., which in this 
point repeats the original Art. xi. § 1) requires for 
the choice of a President "a majority of the whole 
number of electors appointed." If no such majority is 
obtained by any candidate, i.e. if the votes of the 
electors are so scattered among diflferent candidates, 
that out of the total number (which is now 401) no one 
receives an absolute majority (i.e. at least 201 votes), 
the choice goes over to the House of Representa- 
tives, who are empowered to choose a President 
from among the three candidates who • have received 
the largest number of electoral votes. In the House 
the vote is taken by States, a majority of all the States 
(i.e. at present of twenty States out of thirty-eight) 
being necessary for a choice. As aU the members of 
the House from a State have but one collective vote, it 
follows that if they are equally divided among them- 
selves, e,g. if half the members from a given State, 
say Pennsylvania, are Democratic and half Republican, 
the vote of that State is lost. Supposing this to be the 
case in half the total number of States, or supposing 
the States so to scatter their votes that no candidate 
receives an absolute majority, then no President is 
chosen, and the Vice-President becomes President.^ 

Only twice has the election gone to the House. 
In 1800, when the rule still prevailed that the candidate 
with the largest number of votes became President, and 
the candidate who came second Vice-President, Jefferson 
and Aaron Burr received the same number. The 
Jeffersonian electors meant to make him President, but 

^ As to the choice of the Vice-President by the Senate see Constit., 
Am. xii. 



CHAP. V THE PRESIDENT 59 

as they had also all voted for Burr, there was a tie. 
After a long struggle the House chose Jeflferson.^ Feeling 
ran high, and had Jeflferson been kept out by the votes 
of the Federalist party, his partisans might possibly 
have taken up arms. In 1824 Andrew Jackson had 
99 electoral votes, and his three competitors (J. Q. 
Adams, W. H. Crawford, and Henry Clay), 162 votes 
between them, so that Jackson wanted 32 of an 
absolute majority. The House chose J. Q. Adams by 
a vote of thirteen States against seven for Jackson 
ai^d four for Crawford.^ In this mode of choice, the 
popular will may be still less recognized than it is by 
the method of voting through presidential electors, for 
if the twenty smaller States were through their re- 
presentatives in the House to vote for candidate A, and 
the eighteen larger States for candidate B, A would be 
seated, though the population of the twenty smaller 
States is, of course, very much below that of the 
eighteen larger. 

The Constitution seems, though its language is not 
explicit, to have intended to leave the counting of the 
votes to the president of the Senate (the Vice-President 
of the United States) ; and in early days this officer 
superintended the count, and decided questions as to the 
admissibility of doubtful votes. However, Congress has 
in virtue of its right to be present at the counting 
assumed the further right of determining all questions 

^ The votes of two States were for a long time divided ; but 
Hamilton's influence at last induced the Federalist members to vote for 
Jefferson as a person less dangerous to the country than Burr. His 
action — highly patriotic, for Jefferson was his bitter enemy — cost him his 
life at Burr's hands. 

2 Clay, unlucky throughout in his ambitions for the presidency, had 
stood fourth in the electoral vote, and so could not be chosen by the 
House. Jackson had received the largest popular vote in those States 
where electors were chosen by the people. 



6o THE NATIONAL GOVERNMENT parti 

which arise regarding the validity of electoral votes, and 
has, it need hardly be said, determined them on each 
occasion from party motives. This would be all very 
well were a decision by Congress always certain of 
attainment. But it often happens that one party has 
a majority in the Senate, another party in the House, 
and then, as the two Houses vote separately and each 
diflferently from the other, a deadlock results. I must 
pass by the minute and often tedious controversies 
which have arisen on these matters. But one case 
deserves special mention, for it iUustrates an ingrained 
and formidable weakness of the present electoral system. 
In 1876, Mr. Hayes was the Republican candidate for 
the presidency, Mr. Tilden the Democratic. The former 
carried his list of electors in seventeen States, whose 
aggregate electors numbered 163, and the latter 
carried his list also in seventeen States, whose aggre- 
gate electors numbered 184. Four States remained 
out of the total thirty-eight, and in each of these four 
two sets of persons had been chosen by popular vote, 
each set claiming, on grounds too complicated to be 
here explained, to be the duly chosen electors from 
those States respectively.^ The electoral votes of these 
four States amounted to twenty-two, so that if in any 
one of them the Democratic set of electors had been 
found to have been duly chosen, the Democrats would 
have secured a majority of electoral votes (the total 
number of electors being then 369, so that 184 was 
within one of being a half of that number) whereas even 

^ In Oregon the question was whether one of the chosen electors was 
disqualified because he was a post master. In Florida there were com- 
plaints of fraud, in South Carolina of intimidation, in Louisiana two 
rival State governments existed, each claiming the right to certify electoral 
returns. There had doubtless been a good deal of fraud and some violence 
in several of the Southern States. 



CHAP. V THE PRESIDENT 6i 

if in all of them Republican electors had been chosen, 
the Republican electors would have had a majority 
of one only. In such circumstances the only course for 
the Republican leaders, as good party men, was to claim 
all these doubtful States. This they promptly did, — 
party loyalty is the last virtue that deserts politicians, — 
and the Democrats did the like. 

Meanwhile the electors met and voted in their 
respective States. In the four disputed States the two 
sets of electors met, voted, and sent up to Washington, 
from each of these four, double returns of the electoral 
votes. The result of the election evidently depended 
on the question which set of returns should be admitted 
as being the true and legal returns from the four States 
respectively. The excitement over the whole Union was 
intense, and the prospect of a peaceful settlement 
remote, for the Constitution appeared to provide no 
means of determining the legal questions involved. 
Congress, as remarked above, had in some previous 
instances assumed jurisdiction, but seeing that the 
Republicans had a majority in the Senate, and the 
Democrats in the House of Representatives, it was clear 
that the majority in one House would vote for admitting 
the Republican returns, the majority in the other for 
admitting the Democratic. Negotiations between the 
leaders at last arranged a method of escape. A statute 
was passed creating an electoral commission of five 
Senators, five members of the House of Representatives, 
and five Justices of the Supreme Court, who were to 
determine all questions as to the admissibility of 
electoral votes from States sending up double returns.^ 

^ Power was reserved to Congress to set aside by a vote of both 
Houses the decisions of the Commission, but as the two Houses differed 
in every case, the Democrats of the House always voting against each 



62 THE NATIONAL GOVERNMENT parti 

Everything now turned on the composition of the 
electoral Commission, a body such as had never before 
been created. The Senate appointed three Republicans 
and two Democrats. The House of Representatives 
appointed three Democrats and two Republicans. So 
far there was an exact balance. The statute had in- 
dicated four of the Justices who were to sit, two 
Republicans and two Democrats, and had left these four 
to choose a fifth. This fifth was the odd man whose 
casting vote would turn the scale as between the seven 
Republican members of the Commission and the seven 
Democrats. The four Justices chose a Republican 
Justice, and this choice practically settled the result, for 
every vote given by the members of the Commission 
was a strict party vote.^ They were nearly all lawyers, 
and had all taken an oath of impartiality. The legal 
questions were so difficult, and for the most part so 
novel, that it was possible for a sound lawyer and 
honest man to take in each case either the view for 
which the Republicans or that for which the Democrats 
contended. Still it is interesting to observe that the 
legal judgment of every commissioner happened to 
coincide with his party proclivities.* All the points in 
dispute were settled by a vote of eight to seven in 
favour of the returns transmitted by the Republican 
electors in the four disputed States, and Mr. Hayes was 
accordingly declared duly elected by a majority of 185 

determination of the Commission, and the Republicans of the Senate 
supporting it, this provision made no difference, 

^ The Commission decided unanimously that the Democratic set of 
electors from South Carolina were not duly chosen, but they divided 
eight to seven as usual on the question of recognizing the Republican 
electors of that State. 

2 The same phenomenon has been observed in committees of the 
English House of Commons appointed to deal with purely legal questions, 
or to sit in a virtually judicial capacity. 



CHAP.v THE PRESIDENT 63 

electoral votes against 184. The decision may have 
been right as matter of law, — it is still debated by 
lawyers, — and there had been so much force and 
fraud on both sides in Florida, Louisiana, and South 
Carolina, that no one can say on which side sub- 
stantial justice lay. Mr. Tilden deserves the credit 
of having induced his friends both to agree to a com- 
promise slightly to his own disadvantage, and to accept 
peaceably, though with long and loud complaints, a 
result which baffled their hopes. I tell the story here 
because it points to a grave danger in the presidential 
system. The stake played for is so high that the 
temptation to fraud is immense ; and as the ballots given 
for the electors by the people are received and counted 
by State authorities under State laws, an unscrupulous 
State faction has opportunities for fraud at its command. 
Ten years passed after the election of 1876, but 
Congress, although successive Presidents pressed the 
subject on its attention, did nothing till 1887 to provide 
against a recurrence of the danger described. It has 
now enacted a statute which to some extent meets the 
problem by providing that tribunals appointed in and 
by each State shall determine what electoral votes from 
the State are legal votes ; and that if the State has ap- 
pointed no such tribunal, the two Houses of Congress 
shall determine which votes (in case of double returns) 
are legal. If the Houses differ the vote of the State is 
lost.^ It is, of course, possible under this plan that the 
State tribunal may decide unfairly ; but the main thing 
is to secure some decision. Unfairness is better than 
uncertainty. 

A President is removable during his term of 

^ There are further provisions in the Act which need not be given 
here. 



64 THE NA TIONAL GO VERNMENT part i 

office only by means of impeachment, a procedure 
familiar on both sides of the Atlantic in 1787, when the 
famous trial of Warren Hastings was still lingering on 
at Westminster. Impeachment, which had played no 
small part in the development of English liberties, was 
deemed by the Americans of those days a valuable 
element in their new constitution, for it enabled Congress 
to depose, and the fear of it might be expected to 
restrain, a treasonably ambitious President. In obedi- 
ence to State precedents,^ it is by the House of Repre- 
sentatives that the President is impeached, and by 
the Senate, sitting as a law court, with the chief justice 
of the Supreme court, the highest legal official of the 
country, as presiding officer, that he is tried. A two- 
thirds vote is necessary to conviction, the eflfect of 
which is simply to remove him from and disqualify him 
for office, leaving him "liable to indictment, trial, 
judgment, and punishment, according to law" (Constitu- 
tion, Art. i. § 3, Art. ii. § 4). The impeachable oflfences 
are "treason, bribery, or other high crimes and mis- 
demeanours," an expression which some have held to 
cover only indictable oflfences, while others extend it to 
include acts done in violation of official duty and 
against the interests of the nation, such acts, in fact, as 
were often grounds for the English impeachments of the 
seventeenth century. As yet, Andrew Johnson is the 
only President who has been impeached. His foolish 
and headstrong conduct made his removal desirable, but 
as it was doubtful whether any single oflfence justified a 
conviction, several of the senators politically opposed to 

^ Impeachment was taken, not directly from English usage, but rather 
from the Constitutions of Virginia (1776), and Massachusetts (1780), 
which had, no doubt following the example of England, established this 
remedy against culpable officials. 



CHAP. V THE PRESIDENT 65 

him voted for acquittal.^ A two-thirds majority not 
having been secured upon any one article (the numbers 
being thirty-five for conviction, nineteen for acquittal) 
he was declared acquitted. 

In case of the removal of a President by his impeach- 
ment, or of his death, resignation, or inability to discharge 
his duties, the Vice-President steps into his place. The 
Vice-President is chosen at the same time, by the same 
electors, and in the same manner as the President. 
His only functions are to preside in the Senate 
and to succeed the President. Failing both President 
and Vice-President it was formerly provided by 
statute, not by the Constitution, that the presiding 
officer for the time being of the Senate should suc- 
ceed to the presidency, and, failing him, the Speaker 
of the House of Representatives. To this plan there 
was the obvious objection that it might throw power 
into the hands of the party opposed to that to which 
the lately deceased President belonged ; and it has there- 
fore been now (by an Act of 1886) enacted that on 
the death of a President the secretary of state shall 
succeed, and after him other officers of the administration, 
in the order of their rank. Four Presidents (Harrison, 
Taylor, Lincoln, Garfield) have died in office, and been 
succeeded by Vice-Presidents, and in the first and third 
of these instances the succeeding Vice-President has 
reversed the policy of his predecessor, and become 
involved in a quarrel with the party which elected him, 
such as has never yet broken out between a man elected 
to be President and his party. In practice very little 
pains are bestowed on the election of a Vice-President. 

^ They may have questioned the expediency of turning him out at 
that moment; or their political prepossessions against him may have 
been restrained by a doubt whether the evidence was quite sufficient to 
support a quasi-criminal charge. 

VOL. I F 



66 THE NATIONAL GOVERNMENT parti 

The convention which selects the party candidates usually 
gives the nomination to this post to a man in the second 
rank, sometimes as a consolation to a disappointed 
candidate for the presidential nomination, sometimes to 
a friend of such a disappointed candidate in order to 
" placate " his faction; sometimes as a compliment to an 
elderly leader who is personally popular. If the party 
carries its candidate for President, it also as a matter of 
course carries its candidate for Vice-President, and thus 
if the President happens to die, a man of small account 
may step into the chief magistracy of the nation. 



CHAPTER VI 

PRESIDENTIAL POWERS AND DUTIES 

The powers and duties of the President as head of the 
Federal executive are the following : — 

Command of Federal army and navy and of militia 
of several States when called into service of the 
United States. 
Power to make treaties, but with advice and con- 
sent of the Senate, i.e. consent of two -thirds of 
senators present. 
„ to appoint ambassadors and consuls, judges of 
Supreme court, and all other higher Federal 
officers, but with advice and consent of Senate. 
„ to grant reprieves and pardons for oflfences 
against the United States, except in cases of 
impeachment. 
, , to convene both Houses on extraordinary occasions, 
„ to disagree with {i.e. to send back for re- 
consideration) any bill or resolution passed by 
Congress, but subject to the power of Congress to 
finally pass the same, after re-consideration, by a 
two-thirds majority in each House. 
Duty to inform Congress of the state of the Union, 
and to recommend measures to Congress. 
„ to receive foreign ambassadors. 



68 THE NATIONAL GOVERNMENT pari 

Duty to " take care that the laws be faithfully ex( 
cuted" 
„ to commission all thB officers of the UmtF=5( 
States. 

« 

These functions group themselves into four classes — 

Those which relate to foreign affiiirs. 

Those which relate to domestic administration. 

Those which concern legislation. 

The power of appointment. 
The conduct of foreign policy would be a function of 
the utmost importance did not America, happy America, 
stand apart in a world of her own, unassailable by 
European powers, easily superior to the other republics of 
her continent, but with no present motive for aggres- 
sion upon them. The President, however, has not a 
free hand in foreign policy. He cannot declare war, for 
that belongs to Congress, though to be sure he may, as 
President Polk did in 1845-6, bring affiiirs to a point at 
which it is hard for Congress to refrain from the declara- 
tion. Treaties require the approval of two-thirds of 
the Senate ; and in order to secure this, it is usually 
necessary for the Executive to be in constant com- 
munication with the Foreign Affiiirs Committee of that 
body. The House of Representatives has no legal right 
to interfere, but it often passes resolutions enjoining or 
disapproving a particular line of policy ; and sometimes 
invites the Senate to coincide in these expressions of 
opinion, which then become weightier. The President 
is by no means bound by such resolutions, and has more 
than once declared that he does not regard them. But 
as some treaties, especially commercial treaties, cannot be 
carried out except by the aid of statutes, and as no war 
can be entered on without votes of money, the House 
of Representatives can sometimes indirectly make good 



CHAP. VI PRESIDENTIAL POWERS AND DUTIES 69 

its claim to influence. Many delicate questions, some 
of them not yet decided, have arisen upon these points, 
which the Constitution has, perhaps unavoidably, left in 
half light. ^ In all free countries it is most difficult to 
define the respective spheres of the legislature and 
executive in foreign affairs, for while publicity and 
parliamentary control are needed to protect the people, 
promptitude and secrecy are the conditions of diplomatic 
success. Practically, however, and for the purposes of 
ordinary business, the President is independent of the 
House, while the Senate, though it can prevent his 
settling anything, cannot keep him fix)m unsettling 
everything. He, or rather his secretary of state, for 
the President has rarely leisure to give close or 
continuous attention to foreign policy, retains an 
unfettered initiative, by means of which he may embroil 
the country abroad or excite passion at home. 

The domestic authority of the President is in time 
of peace very small, because by far the larger part of 
law and administration belongs to the State governments, 
and because Federal administration is regulated by 
statutes which leave little discretion to the executive. 
In war time, however, and especially in a civil war, it 
expands with portentous speed. Both as commander- 
in-chief of the army and navy, and as charged with the 
" fidthfiil execution of the laws," the President is likely 
to be led to assume all the powers which the emergency 
requires. How much he can legally do without the aid 
of statutes is disputed, for the acts of President Lincoln 
during the earlier part of the War of Secession, including 
his proclamation suspending the writ of Habeas Corpus, 
were subsequently legalized by Congress ; but it is at 

^ An acute discussion of some of these questions may be found in 
Dr. Von Hoist's Staatsrecht der Vereinigten Staaien^ § 68. 



70 THE NATIONAL GOVERNMENT parti 

least clear that Congress can make him, as it did 
make Lincoln, almost a dictator. And how much 
the war power may include appears in this, that by 
virtue of it and without any previous legislative sanction 
President Lincoln issued his emancipation proclamations 
of 1862 and 1863, declaring all slaves in the insurgent 
States to be thenceforth free, although these States were 
deemed to be in point of law still members of the Union.^ 
It devolves on the executive as well as on Congress 
to give eflfect to the provisions of the Constitution 
whereby a republican form of government is guaranteed 
to every State : and a State may, on the application of 
its legislature, or executive (when the legislature cannot 
be convened), obtain protection against domestic violence. 
Where, as in Louisiana in 1873, there are two govern- 
ments disputing by force the control of a State, or 
where an insurrection breaks out, as in Rhode Island in 
1840-2, this power becomes an important one, for it in- 
volves the employment of troops, and enables the Pre- 
sident (since it is usually on him that the duty falls) 
to establish the government he prefers to recognize.^ 
Fortunately the case has been one of rare occurrence. 

^ The proclamation was expressed not to apply to States which had 
not seceded, nor to such parts of seceding States as had then already been 
reconquered by the northern armies. Slavery was finally legally ex- 
tinguished everywhere by the thirteenth constitutional amendment of 1866. 

^ In the Louisiana case Federal troops were employed : in the Rhode 
Island case the President authorized the sending in of the militia of 
Massachusetts and Connecticut, but the Rhode Island troops succeeded in 
suppressing the rebellion, whose leader was ultimately convicted of high 
treason against the State and imprisoned. See as to the guarantee of order 
and republican government in the States, the case of Luther v. Borden (7 
How. 42) and the instructive article of Judge T. M. Cooley in the Interna- 
tional Review for January 1876. He observes : " The obligation to guarantee 
a republican form of government to the States, and to protect them 
against invasion and domestic violence, is one imposed upon ' the United 
States.' The implication is that the duty was not to depend for its fulfil- 
ment on the legislative department exclusively, but that all departments of 
the government, or at least more than one, were or might be charged with 



CHAP. VI PRESIDENTIAL POWERS AND DUTIES 71 

The President has the right of speaking to the nation 
by addresses or proclamations, a right not expressly con- 
ferred by the Constitution, but inherent in his position. 
Occasions requiring its exercise are uncommon. On 
entering ofl&ce, it is usual for the new magistrate to issue 
an inaugural address, stating his views on current 
public questions. Washington also put forth a farewell 
address, but Jackson's imitation of that famous document 
was condemned as a piece of vain-glory. It is thought 
bad taste for the President to deliver stump speeches, 
and Andrew Johnson injured himself by the practice. 
But he retains that and all other rights of the ordinary 
citizen, including the right of voting at Federal as well 
as State elections in his own State. And he has some- 
times taken an active, though a covert, share in the 
councils of his own party. 

The position of the President as respects legislation 
is a peculiar one. The King of England is a member 
of the English legislature, because Parliament is in 
theory his Great Council which he summons and in 
which he presides, hearing the complaints of the people, 
and devising legislative remedies.^ It is as a member of 
the legislature that he assents to the bills it presents to 
him, and the term " veto power," since it seems to sug- 
gest an authority standing outside to approve or reject, 

• 

some duty in this regard. It has been Congress which hitherto has assumed 
to act upon the guarantee, while application for protection against domestic 
violence has, on the other hand, been made to the President From the 
nature of the case the judiciary can have little or nothing to do with ques- 
tions arising under this provision of the Constitution." 

^ It need hardly be said that the actual separation of Parliament into 
two bratches, each of which deliberates apart under the presidency of its 
own chairman (the chairman of one House named by the sovereign, whom 
he represmts, that of the other chosen by the House, but approved by 
the sovereign), does not exclude the theory that the King Lords and 
Commons constitute the common council of the nation. They are indeed 
deemed to be the whole nation, assembled for national purposes. 



72 THE NA TIONAL GO VERNMENT part i 

does not happily describe his right of dealing with a 
measure which has been passed by the council in which 
he is deemed to sit, though in point of fact he no longer 
does so except at the beginning and ending of a session. 
The American President is not a member of the legisla- 
ture at all. He is an independent and separate power 
on whom the people, for the sake of checking the legis- 
lature and bf protecting themselves against it, have 
specially conferred the function of arresting by his dis- 
approval its acts. So again the King of England can 
initiate legislation. According to the older Constitution, 
statutes purported to be made by him, but " with the 
advice and consent of the Lords Spiritual and Temporal 
and of the Commons. " ^ According to the modern practice, 
nearly all important measures are brought into Parliament 
by his ministers, and nominaUy under his instructions. 
The American President cannot introduce bills, either 
directly or through his ministers, for they do not sit in 
Congress. All that the Constitution permits him to 
do in this direction is to inform Congress of the stace 
of the nation, and to recommend the measures whzch 
his experience in administration shows to be necessary. 
This latter function is discharged by the messages 
which the President addresses to Congress. The most 
important is that sent by the hands of his private secre- 
tary at the beginning of each session. 

1 In the fourteenth century English statutes are expressed to be made 
by the king, " par conseil et par assentement " of the lords and th« com- 
monalty. The words " by the authority " of the Lords and Conmons 
first appear in the eleventh year of Henry VI. (1433), and from :he first 
of Henry VII. (1485) downwards a form substantially the sam« as the 
present is followed, viz. " Be it enacted by the Queen's most sxcellent 
Majesty, by and with the advice and consent of the Lords Spintual and 
Temporal, and Commons, and by the authority of the sane." See 
Stubbs, Constitutional History^ vol. iii. chap. xx. ; Anson, Lito of the 
CormtittUion, vol. i. p. 127. 



CHAP. VI PRESIDENTIAL POWERS AND DUTIES 73 

Greorge Washington used to deliver his addresses 
orally, like an English, king, and drove in a coach and 
six to open Congress with something of an English 
king's state. But Jefferson, when his turn came in 1801, 
whether from republican simplicity, as he said him- 
self, or because he was a poor speaker, as his critics 
said, began the practice of sending communications in 
writing; and this has been followed ever since. The 
message usually discusses the leading questions of the 
moment, indicates mischiefe needing a remedy, and 
suggests the requisite legislation. But as no bills are 
submitted by the President, and as, even were he to 
submit them, no one of his ministers sits in either House 
to explain and defend them, the message is a shot in 
the air without practical result. It is rather a mani- 
festo, or declaration of opinion and policy, than a step 
towards legislation. Congress is not moved : members 
go their own ways and bring in their own bills. Pre- 
sident Cleveland, for instance, has recently (1887) in two 
successive messages called attention to the necessity for 
dealing with the silver question, but Congress has not 
even attempted to handle the matter. 

Far more eflfective is the President's part in the last 
stage of legislation, for here he finds means provided for 
carrying out his will. When a bill is presented to him, 
he may sign it, and his signature makes it law. If, how- 
ever, he disapproves of it, he returns it within ten days 
to the House in which it originated, with a statement of 
his grounds of disapproval. If both Houses take up the 
bill again and pass it by a two- thirds majority in each 
House, it becomes law forthwith without requiring the 
President's signature.^ If it fails to obtain this majority 
it drops. 

^ If Congress adjourns within the ten days allowed the President for 



74 THE NATIONAL GOVERNMENT parti 

Considering tl^at the arbitrary use, by George III. 
and his colonial governors, of the power of refusing bills 
passed by a colonial legislature had been a chief cause 
of the Ke volution of 1776, it is to the credit of the 
Americans that they inserted this apparently undemo- 
cratic provision in the Constitution of 1789.^ It has 
worked wonderfully well. Most Presidents have used it 
sparingly, and only where they felt either that there 
was a case for delay, or that the country would support 
them against the majority in Congress. Perverse or 
headstrong Presidents have been generally defeated by 
the use of the two-thirds vote to pass the bill over their 
objections. Washington vetoed (to use the popular ex- 
pression) two bills only; his successors down till 1830, 
seven; and till the accession of President Cleveland 
in 1885 the total number vetoed was only seventy- 
seven (including the so-called pocket vetoes) in ninety - 
six years. ^ Mr. Cleveland had up to March 1887 
vetoed a much larger number than this, the great 
majority being bills for granting pensions to persons who 
served in the northern armies during the War of Seces- 

returning the bill, it is lost. His retaining it under these circumstances 
at the end of a session is popularly called a " pocket veto." 

^ At that time there was only one State, Massachusetts, whose con- 
stitution allowed the governor a veto. As to the veto power in the States, 
an interesting subject, see ^d«t, Chapters XL. and XLI. 

2 Mr. Horace Davis (in John* Hopkins University Stttdies, Third Series, 
Nos. ix. X.) gives the following particulars, up to 1 886 : " Forty- three of the 
seventy-seven vetoes emanated from four Presidents, viz. Jackson, eleven ; 
Tyler, ten ; Johnson, thirteen ; Hayes, nine. All these administrations 
were periods of fierce conflict with a hostile Congress. Add Madison, six ; 
Pierce, five ; Buchanan, seven ; and Grant, six ; and we have sixty-seven 
out of seventy -seven vetoes, and only ten remain to the other twelve 
Presidents. Five subjects comprise the majority of all the vetoes, viz. 
Internal improvements, seventeen ; United States Bank, four ; Recon- 
struction Acts, seven ; Rebel claims, four ; Interference at elections by 
marshals and soldiers, seven ; in all, thirty-seven out of seventy-seven. 
Ten bills have been passed over vetoes, viz. one under Tyler, seven under 
Johnson, one under Hayes, and one under Arthur." 



CHAP. VI PRESIDENTIAL POWERS AND DUTIES 75 

sion.^ Though many of these bills h^d been passed with 
little or no opposition scarcely any were repassed 
against his veto. The only President who used the 
power in a reckless way was Andrew Johnson, who, in 
the course of his three years' struggle with Congress, 
returned to them the chief bills they passed for carry- 
ing out their Southern Reconstruction policy. As the 
majority opposed to him was a large one in both 
Houses, these bills were promptly passed over his veto. 
So far from exciting the displeasure of the people by 
resisting the will of their representatives, a President 
generally gains popularity by the bold use of his veto 
power. It conveys the impression of firmness ; it shows 
that he has a view and does not fear to give effect to it. 
The nation, which has often good grounds for distrusting 
Congress, a' body liable to be moved by sinister private 
influences, or to defer to the clamour of some noisy 
section outside, looks to the man of its choice 
to keep Congress in order. By "killing" more bills 
than all his predecessors put together had done, 
Mr. Cleveland raised himself in public opinion and 
improved the prospects of his re-election. The reasons 
why the veto provisions of the Constitution have 
succeeded appear to be two. One is that the Presi- 
dent, being an elective and not a hereditary magis- 
trate, is deemed to act for the people, is responsible to 
the people, and has the weight of the people behind him. 
The people regard him as a check, an indispensable 
check, not only upon the haste and heedlessness of their 

^ In 1886 Mr. Cleveland returned to Congress 115 bills in all, of 
which. 101 were pension bills. It was attempted to pass a second time 
only eight of these, and only one was in fact repassed. His chief ground 
was that a regular bureau exists for dealing with and awarding pensions 
under the general law, that many of the claims recognized by these bills 
had been reported against, and that others were open to suspicion. 



yd THE NATIONAL GOVERNMENT parti 

representatives, the faults that the framers of the Con- 
stitution chiefly feared, but upon their tendency to 
yield either to pressure from any section of their constitu- 
ents, or to temptations of a private nature. He is ex- 
pected to resist these tendencies on behalf of the whole 
people, whose interests may suffer from the selfishness as 
well of sections as of individuals. The other reason is that 
a veto can never take effect unless there is a substantial 
minority of Congress, a minority exceeding one -third 
in one or other House, which agrees with the President. 
Should the .majority threaten him he is therefore sure of 
considerable support. Hence this arrangement is pre- 
ferable to a plan, such as that of the French Constitution 
of 1791 ^ (under which the king's veto could be overridden 
by passing a bill in three successive years), for enabling 
the executive simply to delay the passing of a measure 
which may be urgent, or which a vast majority of the 
legislature may desire. In its practical working the 
presidential veto power furnishes an interesting illustra- 
tion of the tendency of unwritten or flexible constitu- 
tions to depart from, of written or rigid constitutions to 
cleave to, the letter of the law. The strict legal theory 
of the rights of the head of the State is in this point 
exactly the same in England and in America. But 
whereas it is now the undoubted duty of an English 
king to assent to every bill passed by both Houses of 
Parliament, however strongly he may personally dis- 
approve its provisions,^ it is the no less undoubted duty 

^ As the majority in France was unable to attain its will by constitu- 
tional means without waiting three years, it was the more disposed to 
overthrow the Constitution. 

2 Queen Elizabeth, in A.D. 1597, assented to forty-three bills passed 
in that session, and "advised herself upon" forty-eight William III. 
refused to assent to five bills. The last instance of the use of the " veto 
power" in England was by Queen Anne in 1707 on a Scotch militia bilL 
Mr. Tod (Parliamentary Government in the English Colonies^ ii. p. 319) 



CHAP. VI PRESIDENTIAL POWERS AND DUTIES 77 

of an American President to exercise his independent 
judgment on every bill, not sheltering himself under 
the representatives of the people, or foregoing his own 
opinion at their bidding.^ 

As the President is charged with the whole Federal 
administration, and responsible for its due conduct, he 
must of course be allowed to choose his executive sub- 
ordinates. But as he may abuse this tremendous power 
the Constitution associates the Senate with him, requiring 
the " advice and consent " of that body to the appoint- 
ments he makes. It also permits Congress to vest in the 
courts of law, or in the heads of departments, the right 
of appointing to '' inferior offices."^ This last clause has 
been used to remove many posts from the nomination 
of the President. But a vast number, roughly estimated 

mentions that in 1858 clianges in a private railway bill were compelled 
by an intimation to its promoters that, if they were not made, the royal 
power of rejection would be exercised. 

^ The practical disuse of the " veto power " in England is due not 
merely to the decline in the authority of the Crown, but to the fact that, 
since the Revolution, the Crown acts only on the advice of responsible 
ministers, who necessarily command a majority in the House of Commons. 
A bill therefore cannot be passed against the wishes of the ministry unless 
in the rare case of their being ministers on suflferance, and even in that 
event they would be able to prevent its passing by advising the Crown to 
prorogue or dissolve Parliament before it had gone through all its stages. 
In 1868 a bill (the Irish Church Suspension Bill) was carried through the 
House of Commons by Mr. Gladstone against the opposition of the then 
Tory ministry which was holding office on sufferance ; but it was rejected 
on second reading by a large majority in the House of Lords. Had that 
House seemed likely to accept it the case would have arisen which I have 
referred to, and the only course for the ministry would have been to dis- 
solve Parliament. 

It was urged against the provision in the Constitution of 1789 for the 
President's veto that the power would be useless, because in England the 
Crown did not venture to use it Wilson replied by observing that the 
English Crown had not only practically an antecedent negative, but also 
a means of defeating a bill in the House of Lords by creating new peers. 
— Elliot's DehateSy ii. p. 472. 

2 The Constitution also permits Congress to vest the appointment of 
such inferior offices as it thinks fit in the President alone, so as not to 
require the Senate's concurrence. 



78 THE NATIONAL GOVERNMENT parti 

at 3500, and including for example nearly 600 places 
under the Treasury, and nearly 2000 post-masterships, 
still remain in his gift. The confirming power entrusted 
to the Senate has become a political factor of the highest 
moment. The framers of the Constitution probably 
meant nothing more than that the Senate should check 
the President by rejecting nominees who were personally 
unfit, morally or intellectually, for the post to which he 
proposed to appoint them. The Senate has always, ex- 
cept in its struggle with President Johnson, left the Pre- 
sident fi'ee to choose his cabinet ministers. But it early 
assumed the right of rejecting a nominee to any other 
office on any ground which it pleased, as for instance, if it 
disapproved his political affiliations, or simply if it dis- 
liked him, or wished to spite the President. Presently 
the senators from the State wherein a Federal office to 
which the President had made a nomination lay, being 
the persons chiefly interested in the appointment, and 
most entitled to be listened to by the rest of the Senate 
when considering it, claimed to have a paramount voice 
in deciding whether the nomination should be confirmed. 
This claim was substantially yielded, for it applied all 
round, and gave every senator what he wanted. The sena- 
tors then proceeded to put pressure on the President. 
They insisted that before making a nomination to an 
office in any State he should consult the senators from that 
State who belonged to his own party, and be guided by 
their wishes. Such an arrangement benefited all sena- 
tors alike, because each obtained the right of practically 
dictating the appointments to those Federal offices which 
he most cared for, viz. those within the limits of his 
own State ; and each was therefore willing to support 
his colleagues in securing the same right for themselves 
as regarded their States respectively. Of course when 



CHAP. VI PRESIDENTIAL POWERS AND DUTIES 79 

a senator belonged to the party opposed to the President, 
he had no claim to interfere, because places are as a 
matter of course given to party adherents only. When 
both senators belonged to the President's party tiiey 
agreed among themselves as to the person whom 
they should require the President to nominate. By 
this system, which obtained the name of the Courtesy 
of the Senate, the President was practically enslaved as 
regards appointments, because his refusal to be guided 
by the senator or senators within whose State the office 
lay exposed him to have his nomination rejected. The 
senators, on the other hand, obtained a mass of 
patronage by means of which they could reward their 
partisans, control the Federal civil servants of their 
State, and build up a faction devoted to their interests.^ 
Successive Presidents chafed under the yoke, and some- 
times carried their nominees either by making a bargain 
or by fighting hard with the senators who sought to 
dictate to them. But it was generally more prudent to 
yield, for an offended senator could avenge a defeat 
by playing the President a shrewd trick in some other 
matter ; and as the business of confirmation is transacted 
in secret session, intriguers have little fear of the public 
before their eyes. The senators might, moreover, argue 
that they knew best what would strengthen the party 
in their State, and that the men of their choice were 
just as likely to be good as those whom some private 
friend suggested to the President. Thus the system 
throve and still thrives, though it received a blow 

^ As the House of Representatives could not allow the Senate to en- 
gross all the Federal patronage, there has been a tendency towards a sort 
of arrangement, according to which the greater State offices belong to the 
senators, while as regards the lesser ones, lying within their respective 
Congressional districts, members of the House are recognized as entitled 
to recommend candidates. 



8o THE NATIONAL GOVERNMENT parti 

from the conflict in 1881 between President Garfield 
and one of the New York senators, Mr. Roscoe Conkling. 
This gentleman, finding that Mr. Garfield would not 
nominate to a Federal office in that State the person he 
proposed, resigned his seat in the Senate, inducing his 
co-senator Mr. Piatt to do the same. Both then offered 
themselves for re-election by the State legislature of 
New York, expecting to obtain from it an approval of 
their action, and thereby to cow the President. The 
State legislature, however, in which a faction hostile to 
the two senators had become powerful, rejected Mr. 
Conkling and Mr. Piatt in favour of other candidates. 
So the victory remained with Mr. Garfield, while the 
nation, which had watched the contest eagerly, rubbed 
its hands in glee at the unexpected denouement. 

Before we quit this subject, to which I may re- 
turn in a later chapter, it must be remarked that the 
" Courtesy of the Senate " would never have attained its 
present strength but for the growth in and since the 
time of President Jackson, of the so-called Spoils System, 
whereby holders of Federal offices have been turned out 
at the accession of a new President to make way for the 
aspirants whose services, past or future, he is expected 
to requite or secure by the gift of places.^ 

The right of the President to remove from office has 
given rise to long controversies on which I can only 
touch. In the Constitution there is not a word about 
removals ; and very soon after it had come into force 
the question arose whether, as regards those offices for 
which the confirmation of the Senate is required, the 
President could remove without its consent. Hamilton 
had argued in the Federalist that the President 

^ See further as to the use of Federal patronage the chapter on the 
Spoils System in Vol. II. 



CHAP. VI PRESIDENTIAL POWERS AND DUTIES 8i 

could not so remove, because it was not to be supposed 
that the Constitution meant to give him so immense 
and dangerous a reach of power. Madison argued soon 
after the adoption of the Constitution that it did 
permit him so to remove, because the head of the 
executive must have subordinates whom he can trust, 
and may discover in those whom he has appointed 
defects fatal to their usefulness. This was also the 
view of Chief- Justice Marshall.^ When the question 
came to be settled by Congress during the presidency 
of Washington, Congress, influenced perhaps by respect 
for his perfect uprightness, took the Madisonian view 
and recognized the power of removal as vested in the 
President alone. So matters stood till a conflict 
arose in 1866 between President Johnson and the 
Republican majority in both Houses of Congress. In 
1867, Congress fearing that the President would 
dismiss a great number of officials who sided with 
it against him, passed an Act, known as the Tenure 
of Office Act, which made the consent of the Senate 
necessary to the removal of office-holders, even of 
the President's (so-called) cabinet ministers, permit- 
ting him only to suspend them from office during the 
time when Congress was not sitting. The constitution- 
ality of this Act has been much doubted, and its policy 
is now generally condemned.^ It was a blow struck in 
the heat of passion. When President Grant succeeded 

^ Mr. Justice. Story in his Commentaries on the Constitution, argues 
against the Madison doctrine, but he does so in view not of such ques- 
tions as presented themselves in 1867, but of the conduct of President 
Jackson (who was in power when Story wrote) in making wholesale 
partisan removals. The whole subject of the President's appointing power 
is elaborately and judiciously treated in an article in the Papers of the 
American Historical Association, vol. i., by Lucy M. Salmon. 

2 Mr. James G. Blaine, for instance, who was a member of the 
Congress which passed the Act, has in his Twenty Years in Congress ex- 
pressed his disapproval of it. 

VOL. I G 



82 THE NATIONAL GOVERNMENT parti 

in 1869, the Act was greatly modified, and it has now 
(1887) been with general approval repealed. 

How dangerous it is to leave all oflfices tenable at 
the mere pleasure of a partisan Executive using them 
for party purposes, has been shown by the fruits of the 
Spoils system. On the other hand a President ought to 
be free to choose his chief advisers and ministers, and 
even in the lower ranks of the civil service it is hard to 
secure efficiency if a specific cause, such as could be 
proved to a jury, must be assigned for dismissal. 

Although Congress has transferred many minor 
appointments to the courts and the heads of depart- 
ments, and by the Civil Service Reform Act of 1883 has 
instituted competitive examinations for a number esti- 
mated at 14,000, many remain in the free gift of the 
President ; and even as regards those which lie with his 
ministers, he may be invoked if disputes arise between 
the minister and politicians pressing the claims of their 
respective friends. The business of nominating is in 
ordinary times so engrossing as to leave the chief 
magistrate of the nation little time for his other 
functions. 

Artemus Ward's description of Abraham Lincoln 
swept along from room to room in the White House by 
a rising tide of office seekers is hardly an exaggeration. 
From the 4th of March, when Mr. Garfield came into 
power, till he was shot in the July following, he was 
engaged almost incessantly in questions of patronage.^ 
Yet the President's individual judgment has little scope. 
He must reckon with the Senate ; he must requite the 
supporters of the men to whom he owes his election : 

^ It is related that a friend, meeting Mr. Lincoln one day during the 
war, observed, " You look anxious, Mr. President ; is there bad news 
from the front ? " " No," answered the President, " it isn't the war : it's 
that post-mastership at BrownsWlle, Ohio.*' 



CHAP. VI PRESIDENTIAL POWERS AND DUTIES %2, 

lie must so distribute places all over the country as to 
keep the local wire-pullers in good humour, and gener- 
ally strengthen the party by "doing something" for 
those who have worked or will work for it. Although the 
minor posts are practically left to the nomination of the 
senators or congressmen from, the State or district, 
conflicting claims give infinite trouble, and the more 
lucrative offices are numerous enough to make the task 
of selection laborious as well as thankless and disagree- 
able. No one has more to gain from a thorough scheme 
of civil service reform than the President. The present 
system makes a wire-puller of him. It throws work on 
him unworthy of a fine intellect, and for which a man 
of fine intellect may be ill qualified. On the other 
hand the President's patronage is, in the hands of a 
skilful intriguer, an engine of far-spreading potency. 
By it he can oblige a vast number of persons, can bind 
their interests to his own, can fill important places 
with the men of his choice. Such authority as he has 
over the party in Congress, and therefore over the 
course of legislation, such influence as he exerts on his 
party in the several States, and therefore over the 
selection of candidates for Congress, is due to his 
patronage. Unhappily, the more his patronage is used 
for these purposes, the more it is apt to be diverted 
from the aim of providing the country with the best 
officials. 

In quiet times the power of the President is not 
great. He is hampered at every turn by the necessity 
of humouring his party. He is so much engrossed by 
the trivial and mechanical parts of his work as to have 
little leisure for framing large schemes of policy, while 
in carrying them out he needs the co-operation of 
Congress, which may be jealous, or indifierent, or 



84 THE NATIONAL GOVERNMENT parti 

hostile. He has less influence on legislation, — that is 
to say, his individual volition makes less difference 
to the course legislation takes, than the Speaker of 
the House of Representatives. In troublous times it 
is otherwise, for immense responsibility is then thrown 
on one who is both the commander-in-chief and the 
head of the civil executive. Abraham Lincoln wielded 
more authority than any single Englishman has 
done since Oliver Cromwell. It is true that the 
ordinary law was for some purposes practically sus- 
pended during the War of Secession. But it will 
always have to be similarly suspended in similar 
crises, and the suspension enures to the benefit of the 
President, who becomes a sort of dictator. 

Setting aside these exceptional moments, the dignity 
and power of the President have, except in respect to 
the increase in the quantity of his patronage, been 
raised but little during the last fifty years, that is, 
since the time of Andrew Jackson, the last President 
who, not so much through his oflBce as by his personal 
ascendency and the vehemence of his character, led and 
guided his party from the chair. Here, too, one sees 
how a rigid or supreme Constitution serves to keep 
things as they were. But for its iron hand, the office 
would surely, in a country where great events have 
been crowded on one another and opinion changes 
rapidly under the teaching of events, have either risen 
or fallen, have gained strength or lost it. 

In no European country is there any personage to 
whom the President can be said to correspond. If we 
look at parliamentary countries like England, Italy, 
Belgium, he resembles neither the sovereign nor the 
prime minister, for the former is not a party chief at 
all, and the latter is palpably and confessedly nothing 



CHAP. VI PRESIDENTIAL POWERS AND DUTIES 85 

else. The President enjoys more authority, if less 
dignity, than a European king. He has powers for the 
moment narrower than a European prime minister, but 
these powers are more secure, for they do not depend 
on the pleasure of a parliamentary majority, but run 
on to the end of his term. One naturally compares 
him with the French president, but the latter has a 
prime minister and cabinet, dependent on the chamber, 
at once to relieve and to eclipse him : in America 
the President's cabinet is a part of himself and has 
nothing to do with Congress. The president of the 
Swiss Confederation is merely the chairman for a year 
of the Administrative Federal Council (Bundesrath), 
and can hardly be called the executive chief of the 
nation. 

The difficulty in forming a just estimate of the 
President's power arises from the fact that it differs so 
much under ordinary and under extraordinary circum- 
stances. This is a result which republics might seem 
specially concerned to prevent, and yet it is specially 
frequent under republics, as witness the cases of Kome 
and of the Italian commonwealths of the Middle Ages. 
In ordinary times the President may be compared to the 
senior or managing clerk in a large business establishment, 
whose chief function is to select his subordinates, the 
policy of the concern being in the hands of the board of 
directors. But w^hen foreign affairs become critical, or 
when disorders within the Union require his interven- 
tion, — when, for instance, it rests with him to put down 
an insurrection or to decide which of two rival State 
governments he will recognize and support by arms, 
everything may depend on his judgment, his courage, 
and his hearty loyalty to the principles of the 
Constitution. 



86 THE NATIONAL GOVERNMENT parti 

It used to be thought that hereditary monarchs 
were strong because they reigned by a right of their 
own, not derived from the people. A President is 
strong for the exactly opposite reason, because his 
rights come straight from the people. We shall have 
frequent occasion to observe that nowhere is the rule of 
public opinion so complete as in America, nor so direct, 
that is to say, so independent of the ordinary machin- 
ery of government. Now the President is deemed to 
represent the people no less than do the members of the 
legislature. Public opinion governs by and through 
him no less than by and through them, and makes him 
powerful even against the legislature. This is a fact 
to be remembered by those Europeans who seek in the 
strengthening of the monarchical principle a cure for 
the faults of government by assemblies. And it also 
suggests the risk that attaches to power vested in the 
hands of a leader directly chosen by the people. A high 
authority observes ^ : — 

'* Our holiday orators delight with patriotic fervour to 
draw distinctions between our own and other countries, 
and to declare that here the law is master and the 
highest oflBcer but the servant of the law, while even in 
free England the monarch is irresponsible and enjoys 
the most complete personal immunity. But such com- 
parisons are misleading, and may prove mischievous. 

^ Judge T. M. Cooley, in the International Review for Jan. 1875. 
He quotes the words of Edward Livingston : " The gloss of zeal for the 
public service is always spread over acts of oppression, and the people are 
sometimes made to consider that as a briUiant exertion of energy in their 
favour which, when ^iewed in its true light, would be found a fatal blow 
to their rights. In no government is this effect so easily produced as in 
a free republic ; party spirit, inseparable from its existence, aids the illu- 
sion, and a popular leader is allowed in many instances impunity, and 
sometimes rewarded with applause, for acts which would make a tyrant 
tremble on his throne." 



CHAP. VI PRESIDENTIAL POWERS AND DUTIES Zj 

In how many directions is not the executive authority 
in America practically superior to what it is in Eng- 
land ? And can we say that the President is really in 
any substantial sense any more the servant of the law 
than is the Queen? Perhaps if we were candid we 
should confess that the danger that the executive may 
be tempted to a disregard of the law may justly be 
believed greater in America than in countries where the 
chief magistrate comes to his office without the selection 
of the people ; and where consequently their vigilance 
is quickened by a natural distrust." 

Although recent Presidents have shown no disposition 
to strain their authority, it is still the fashion in America to 
be jealous of the President's action, and to warn citizens 
against what is called " the one man power." General 
Ulysses S. Grant was hardly the man to make himself a 
tyrant, yet the hostility to a third term of office which 
moved many people who had not been alienated by the 
faults of his administration, rested not merely on rever- 
ence for the example set by Washington, but also on the 
fear that a President repeatedly chosen would become 
dangerous to republican institutions. This particular 
alarm seems to a European groundless. I do not deny 
that a really great man might exert ampler authority 
from the presidential chair than its recent occupants have 
done. The same observation applies to the Popedom 
and even to the English throne. The President has a 
position of immense dignity, an unrivalled platform 
from which to impress his ideas (if he has any) upon 
the people. But it is hard to imagine a President over- 
throwing the existing Constitution. He has no stand- 
ing army, and he cannot create one. Congress can 
checkmate him by stopping supplies.^ There is no 

^ Assuming his conduct to be such as to warrant this extreme step, 



88 THE NATIONAL GOVERNMENT parti 

aristocracy to rally round him. Every State furnishes 
an independent centre of resistance. If he were to 
attempt a cowp d'etat, it could only be by appealing to 
the people against Congress, and Congress could hardly, 
considering that it is re-elected every two years, attempt 
to oppose the people. One must suppose a condition 
bordering on civil war, and the President putting the 
resources of the executive at the service of one of the 
intending belligerents, already strong and organized, in 
order to conceive a case in which he will be formid- 
able to freedom. If there be any danger, it would seem 
to lie in another direction. The larger a community 
becomes the less does it seem to respect an assembly, 
the more is it attracted by an individual man. A bold 
President who knew himself to be supported by a 
majority in the country, might be tempted to override 
the law, and deprive the minority of the protection 
which the law affords it. He might be a tyrant, not 
against the masses, but with the masses. But nothing 
in the present state of American politics gives weight 
to such apprehensions. 

to which Congress is loth to resort, for the reasons stated in Chapter XX. 
post. Contests between Congress and the President have tended to take 
the form of attaching riders to appropriation bills. 



CHAPTEK VII 

OBSERVATIONS ON THE PRESIDENCY 

Although the Presideiit has been, not that independent 
good citizen whom the framers of the Constitution 
contemplated, but, at least during the last sixty years, 
a party man, seldom much above the average in 
character or abilities, the office has attained the main 
objects for which it was created. Such mistakes as have 
been made in foreign policy, or in the conduct of the 
administrative departments, have been rarely owing to 
the constitution of the office or to the errors of its holder. 
This is more than one who should review the history of 
Europe during the last hundred years could say of any 
European monarchy. Nevertheless, the faults charge- 
able on hereditary kingship, faults more serious than 
Englishmen, who have watched with admiration the 
wisdom of the Crown during the present reign, can 
easily realize, must not make us overlook certain defects 
incidental to the American presidency, perhaps to any 
plan of vesting the headship of the State in a person 
elected for a limited period. 

In a country where there is no hereditary throne 
nor hereditary aristocracy, an office raised far above 
all other offices offers too great a stimulus to ambi- 
tion. This glittering prize, always dangling before 



90 THE NATIONAL GOVERNMENT parti 

the eyes of prominent statesmen, has a power stronger 
than any dignity under a European crown to lure them 
(as it lured Clay and Webster) from the path of straight- 
forw^ard consistency. One who aims at the presidency 
— and all prominent politicians do aim at it — has the 
strongest possible motives to avoid making enemies. 
Now a great statesman ought to be prepared to make 
enemies. It is one thing to try to be popular — an 
unpopular man will be uninfluential — it is another to 
seek popularity by pleasing every section of your party. 
This is the temptation of presidential aspirants. 

A second defect is that the presidential election, occur- 
ring once in four years, throws the country for several 
months into a state of turmoil, for which there may 
be no occasion. Perhaps there are no serious party 
issues to be decided, perhaps the best thing would 
be that the existing Administration should pursue the 
even tenor of its way. The Constitution, however, 
requires an election to be held, so the whole costly and 
complicated machinery of agitation is put in motion ; 
and if issues do not exist, they have to be created.^ 
Professional politicians who have a personal interest 
in the result, because it involves the gain or loss 
of oflfice to themselves, conduct what is called a 
'* campaign," and the country is forced into a &ctitious 
excitement from midsummer, when each party selects the 
candidate whom it will nominate, to the first week of 
November, when the contest is decided. There is some 



^ In England, also, there is necessarily a campaign once at leaat in 
every six or seven years, when a general election takes place, and some- 
times oftener. But note that in England (1) this is the only season of 
disturbance, whereas in America the Congressional elections furnish a 
second ; (2) the period is usually shorter (three to six weeks, not four 
months) ; (3) there have usually been real and momentous issues, di^'iding 
the great parties, which the nation had to settle. 



CHAP. VII OBSERVATIONS ON THE PRESIDENCY 91 

political education in the process, but it is bought 
dearly, not to add that business, and especially finance, 
is disturbed, and much money spent unproductively. 

Again, these regularly recurring elections produce a 
discontinuity of policy. Even when the new President 
belongs to the same party as his predecessor, he usually 
nominates a new cabinet, having to reward his especial 
supporters. Many of the inferior offices are changed ; 
men who have learned their work make way for others 
who have everything to learn. If the new President 
belongs to the opposite party, the change of officials is 
far more sweeping, and involves larger changes of 
policy. The evil would be more serious were it not 
that in foreign policy, where the need for continuity is 
greatest, the United States have little to do, and that 
the CO - operation of the Senate in this department 
prevents the divergence of the ideas of one President 
from those of another from being so wide as it might 
otherwise be. 

Fourthly. The fact that he is re-eligible once, but 
(practically) only once, operates unfavourably on the 
President. He is tempted to play his cards for a 
re-nomination by so pandering to active sections of his 
own party, or so using his patronage to conciliate 
influential politicians, as to make them put him forward 
at the next election. On the other hand, if he is in his 
second term of office, he has no longer much motive to 
regard the interests of the nation at large, because he 
sees that his own political death is near. It may be 
answered that these two evils will correct one another, 
that the President will in his first term be anxious to 
win the respect of the nation, in his second he will 
have no motive for yielding to the unworthy pressure 
of party wire-pullers. 



92 THE NATIONAL GOVERNMENT parti 

But the fact is, as lias been pointed out by some 
foreign observers, that if he were held ineligible for 
the next term, but eligible for any future term, both 
sets of evils might be avoided, and both sets of benefits 
secured. The argument against such a provision would 
be that it makes that breach in policy which may 
now happen only once in eight years, necessarily 
happen once in four years. It would, for instance, 
have prevented the re-election of Abraham Lincoln 
in 1864.^ The founders of the Southern Confederacy 
of 1861-65 were so much impressed by the objections 
to the present system that they provided that their 
President should hold office for six years, but not be 
re-eUgible. 

Fifthly. An out - going President is a weak 
President. During the four months of his stay in 
office after his successor has been chosen, he declines, 
except in cases of extreme necessity, to take any new 
departure, to embark on any executive poUcy which 
cannot be completed before he quits office. This is, of 
course, even more decidedly the case if his successor 
belongs to the opposite party. ^ 

Lastly. The result of an election may be doubtful, 

^ A more obvious and practically sufficient answer is that it would 
need the passing of an amendment to the Constitution, and it needs a 
very strong case to induce three-fourths of the States to agree to change 
this time-honoured document. 

2 Mr. E. A. Freeman {History of Federal Government, L 302) adduces 
from Polybius (iv. 6, 7) a curious instance showing that the same mischief 
arose in the Achaian League : " The ^tolians chose for an inroad the 
time when the official year (of the Achaian General) was drawing to its 
close, as a time when the Achaian counsels were sure to be weak. Aratos, 
the General elect, was not yet in office ; Timoxenos, the outgoing General, 
shrank from energetic action so late in his year, and at last yielded up 
his office to Aratos before the legal time." This effort of Timoxenos to 
escape from the consequences of the system could not have occurred in 
governments like those of Rome, En.crland, or the United States, where 
" the reign of law " is far stricter than it was in the Greek republics. 



cvtAP.vii OBSERVATIONS O'N THE PRESIDENCY 93 

Hot from equality of votes, for this is provided against, 
l)ut from a dispute as to the validity of votes given in 
or reported from the States. This difficulty arose in 
1876, between Mr. Hayes and Mr. Tilden, disclosing 
the existence of a set of cases for which the Constitution 
had not provided. It will not recur in quite the same 
form, for provision has now been made by statute for 
dealing with disputed returns.^ But cases may arise in 
which the returns from a State of its electoral votes 
will, because notoriously obtained by fraud or force, 
fail to be recognized as valid by the party whose 
candidate they prejudice. No presidential election 
passes without charges o^ this kind, and these charges 
are not always unfounded. Should manifest unfairness 
coincide with popular excitement over a really imr 
portant issue,^ the self-control of the people, which has 
liitherto restrained, as it did in 1877, the party passions 
of their leaders, may prove unequal to the strain such a 
crisis would put upon it. 

Further observations on the President, as a part of 
the machinery of government, will be better reserved 
for the discussion of the relations of the executive and 
legislative departments. I will therefore only observe 
here that, even when we allow for the defects last 
enumerated, the presidential office, if not one of the 
conspicuous successes of the American Constitution, is 
nowise to be deemed a failure. The problem of con- 
structing a stable executive in a democratic country is 
so inmiensely difficult that anything short of a failure 
deserves to be called a success. Now the President 

^ See above, page 61. 

2 It was a piece of singular good fortune that the contest between 
Tilden and Hayes was only a contest between persons, between office- 
holders and office-seekers, and that no really grave political issue, heating 
the public mind, was involved. 



94 THE NATIONAL GOVERNMENT parti 

has, during ninety-nine years, carried on the internal 
administrative business of the nation with due efficiency. 
Once or twice, as when JeflFerson purchased Louisiana, 
and Lincoln emancipated the slaves in the revolted 
States, he has courageously ventured on stretches of 
authority, held at the time to be doubtfully constitu- 
tional, yet necessary, and approved by the judgment of 
posterity. He has kept the machinery working quietly 
and steadily when Congress has been distracted by party 
strife, or paralyzed by the dissensions of the two Houses, 
or enfeebled by the want of first-rate leaders. The 
executive has been able, at moments of peril, to rise 
into a dictatorship, as during the War of Secession, and 
when peace returned, to sink back into its proper con- 
stitutional position. It has shown no tendency so to 
dwarf the other authorities of the State as to pave the 
way for a monarchy. 

Europeans are struck by the faults of a plan which 
plunges the nation into a whirlpool of excitement once 
every four years, and commits the headship of the State 
to a party leader chosen for a short period.^ But there 
is another aspect in which the presidential election 
may be regarded, and one whose importance is better 
appreciated in America than in Europe. The elec- 
tion is a solemn periodical appeal to the nation to 
review its condition, the way in which its business 
has been carried on, the conduct of the two great 
parties. It stirs and rouses the nation as nothing else 
does, forces every one not merely to think about public 
affairs but to decide how he judges the parties. It is a 

1 Such faults as belong to the plan of popular election are not neces- 
sarily incident to the existence of a President ; for in France the chief 
magistrate is chosen by the Chambers, and the interposition between him 
and the legislature of a responsible ministry serves to render his position 
less distinctly partisan. 



CHAP. VII OBSERVATIONS ON THE PRESIDENCY 95 

direct expression of the will of ten millions of voters, a 
force before which everything must bow. It refreshes 
the sense of national duty; and at great crises it 
intensifies national patriotism. A presidential election is 
sometimes, as in 1800, and as again most notably in 1860 
and 1864, a turning-point in history. In form it is 
nothing more than the choice of an administrator who 
cannot influence policy otherwise than by refusing his 
assent to bills. In reality it is the deliverance of the 
mind of the people upon all such questions as they feel 
able to decide. A curious parallel may in this respect 
be drawn between it and a general election of the 
House of Commons in England. A general election is 
in form a choice of representatives, with reference 
primarily to their views upon various current questions. 
In substance it is often a national vote (what the 
French call a plebiscite), committing executive power 
to some one prominent statesman. Thus the elections 
of 1868, 1874, 1880, were practically votes of the 
nation to place Mr. Gladstone or Mr. Disraeli at the 
head of the government. So conversely in America, a 
presidential election, which purports to be merely the 
selection of a man, is often in reality a decision upon 
issues of policy, a condemnation of the course taken by 
one party, a mandate to the other to follow some 
different course. 

The choice of party leaders as Presidents has in 
America caused far less mischief than might have been 
expected. Nevertheless, those who have studied the 
scheme of constitutional monarchy as it works in England, 
or Belgium, or Italy, or the reproductions of that scheme 
in British colonies, where the Crown-appointed governor 
stands outside the strife of factions as a permanent 
official, will, when they compare the institutions of these 



96 THE NATIONAL GOVERNMENT parti 

countries with the American presidency, be impressed 
by the merits of a plan which does not unite all the 
dignity of oflfice with all the power of oflfice, and which, 
by placing the titular chief of the executive above and 
apart from party, makes the civil and military services 
feel themselves the servants rather of the nation than 
of any section of the nation, and suggests to them that 
their labours ought to be rendered with equal heartiness 
to whatever party may hold the reins of government. 
Party government may be necessary. So far as we can 
see, it is necessary. But it is a necessary evil ; and 
whatever tends to diminish its mischievous influence 
upon the machinery of administration, and to prevent 
it from obtruding itself upon foreign states ; whatever 
holds up a high ideal of devotion to the nation as a 
majestic whole, living on from century to century while 
parties form and dissolve and form again, strengthens 
and ennobles the commonwealth and all its citizens. 

Such an observation of course applies only to mon- 
archy as a political institution. Socially regarded, the 
American presidency deserves nothing but admiration. 
The President is simply the first citizen of a free nation, 
depending for his dignity on no title, no oflBcial dress, 
no insignia of state. It was originally proposed, doubt- 
less in recollection of the English Commonwealth 
of the seventeenth century, to give him the style 
of '' Highness," and ''Protector of the Liberties of the 
United States." Others suggested " Excellency " ; ^ and 
Washington is said to have had leanings to the Dutch 
style of '' High Mightiness." The head of the ruling 
President does not appear on coins, nor even on postage 

1 In ridicule of this the more democratic members of Conf^*ess pro- 
posed to call that more ornamental than useful officer the Vice-President 
" His Superfluous Excellency." 



CHAP. VII OBSERVATIONS ON THE PRESIDENCY 97 

stamps.^ His residence at Washington called officially 
'' the Executive Mansion," and familiarly " the White 
House," a building with a stucco front and a portico 
supported by Doric pillars, said to have been modelled 
upon the Duke of Leinster's house in Dublin, stands in 
a shrubbery, and has the air of a large suburban villa 
rather than of a palace. The rooms, though spacious, 
are not spacious enough for the crowds that attend the 
public receptions. The President's salary, which is only 
$50,000 (£10,000) a year, does not permit display, nor 
indeed is display expected from him. 

Washington, which even so lately as the days of the 
war was a wilderness of mud and negroes, with a few big 
houses scattered here and there, has now become one of 
the handsomest capitals in the world, and cultivates the 
graces and pleasures of life with eminent success. Besides 
its political society and its diplomatic society, it is becom- 
ing a winter resort for men of wealth and leisure from 
all over the continent. It is a place where a court might 
be created, did any one wish to create it. No President 
has made the attempt ; and as the earlier career of the 
chief magistrate and his wife has seldom qualified them 
to lead the world of fashion, none is likely to make it. 
However, the action of the wife of President Hayes, 
an estimable and energetic lady, whose ardent advocacy 
of temperance caused the formation of a great many total 
abstinence societies, called by her name (Lucy Webb), 
showed that there may be fields in which a President's 
consort can turn her exalted position to good account, 
while of course such graces or charms as she possesses 
will tend to increase his popularity. 

^ The portraits, on American postage stamps are those of eminent past 
Presidents — such as Washington, Jeflferson, Lincoln, Grant, Garfield, and of a 
few famous statesmen, such as Benjamin Franklin and Alexander Hamilton. 

VOL. I H 



98 THE NATIONAL GOVERNMENT parti 

To a European observer, weary of the slavish obse- 
quiousness and lip-deep adulation with which the mem- 
bers of reigning families are treated on the eastern side 
of the Atlantic, fawned on in public and carped at in 
private, the social relations of an American President to 
his people are eminently refreshing. There is a great re- 
spect for the ofl&ce, and a corresponding respect for the man 
as the holder of the oflBce, if he has done nothing to degrade 
it. There is no servility, no fictitious self-abasement on 
the part of the citizens, but a simple and hearty deference 
to one who represents the majesty of the nation, the sort 
of respect which the proudest Roman paid to the consul- 
ship, even if the particular consul was, like Cicero, a " new 
man. " The curiosity of the visitors who throng the White 
House on reception days is sometimes too familiar ; but 
this fault tends to disappear, and Presidents have now 
more reason to complain of the persecutions they endure 
from an incessantly observant journalism. After oscil- 
lating between the ceremonious state of George Wash- 
ington, who drove to open Congress in his coach and 
six, with outriders and footmen in livery, and the osten- 
tatious plainness of Citizen Jefferson, who rode up alone 
and hitched his horse to the post at the gate, the President 
has settled down into an attitude between that of the 
mayor of a great English town on a public occasion, and 
that of a European cabinet minister on a political tour. 
He is followed about and f§ted, and in every way treated 
as the first man in the company ; but the spirit of 
equality which rules the country has sunk too deep 
into every American nature for him to expect to be 
addressed with bated breath and whispering reverence. 
He has no military guard, no chamberlains or grooms- 
in- waiting ; his everyday life is simple ; his wife enjoys 
precedence over all other ladies, but is visited and re- 



CHAP. VII OBSERVATIONS ON THE PRESIDENCY 99 

ceived just like other ladies ; he is surrounded by no 
such pomp and enforces no such etiquette as that which 
belongs to the governors even of second-class English 
colonies, not to speak of the viceroys of India and 
Ireland. 

It begins to be remarked in Europe that monarchy, 
which used to be deemed politically dangerous but 
socially useful, has now, since its claws have been cut, 
become politically valuable, but of more doubtful social 
utility. In the United States the most suspicious 
democrat — and there are democrats who complain that 
the office of President is too monarchical — cannot accuse 
the chief magistracy of having tended to form a court, 
much less to create those evils which thrive in the 
atmosphere of European courts. No President dare 
violate social decorum as European sovereigns have so 
often done. If he did, he would be the first to suffer. 



CHAPTER VIII 

WHY GREAT MEN ARE NOT CHOSEN PRESIDENTS 

Europeans often ask, and Americans do not always 
explain, how it happens that this great office, the greatest 
in the world, unless we except the Papacy, to which any 
man can rise by his own merits, is not more frequently 
filled by great and striking men ? In America, which is 
beyond all other countries the country of a " career open 
to talents," a country, moreover, in which political life 
is unusually keen and political ambition widely diffused, 
it might be expected that the highest place would always 
be won by a man of brilliant gifts. But since the heroes 
of the Eevolution died out with Jefferson and Adams 
and Madison some sixty years ago, no person except 
General Grant has reached the chair whose name would 
have been remembered had he not been President, and 
no President except Abraham Lincoln has displayed rare 
or striking qualities in the chair. Who now knows or 
cares to know anything about the personality of James 
K. Polk or Franklin Pierce ? The only thing remarkable 
about them is that being so commonplace they should 
have climbed so high. 

Several reasons may be suggested for the fact, which 
Americans are themselves the first to admit. 

One is that the proportion of first-rate ability drawn 



CHAP. VIII JVHV GREA T MENAR£ NOT CHOSEN loi 

- /^ - 

into politics is smaller in America 'than i» most European 
countries. This is a phenomenon whose causes must be 
elucidated later : in the meantime it is enough ^ to say- 
that in France and Italy, where half-revolutionary con- 
ditions have made public life exciting and accessible ; m 
Germany, where an admirably-organized civil service 
cultivates and develops statecraft with unusual success ; 
in England, where many persons of wealth and leisure 
seek to enter the political arena, while burning questions 
touch the interests of all classes and make men eager 
observers of the combatants, the total quantity of 
talent devoted to parliamentary or administrative work 
is far larger, relatively to the population, than in 
America, where much of the best ability, both for 
thought and for action, for planning and for executing, 
rushes into a field which is comparatively narrow in 
rlurope, the business of developing the material resources 
of the country. 

Another is that the methods and habits of Congress, 
and indeed of political life generally, seem to give 
fewer opportunities for personal distinction, fewer modes 
in which a man may commend himself to his countrymen 
by eminent capacity in thought, in speech, or in adminis- 
tration, than is the case in the free countries of Europe. 
This is a point to be explained in later chapters. I 
merely note here in passing what will there be dwelt on. 

A third reason is that eminent men make more 
enemies, and give those enemies more assailable points, 
than obscure men do. They are therefore in so far less 
desirable candidates. It is true that the eminent man 
has also made more friends, that his name is more 
widely known, and may be greeted with louder cheers. 
Other things being equal, the famous man is preferable. 
But other things never are equal. The famous man has 






I02 THE NATIOI<rA% GOVERNMENT parti 



■^«- 



• 



probably attacked^, some leaders in his own party, 
has supplanted 'others, has expressed his dislike to the 
crotcb^t of some active section, has perhaps committed 
errbrs which are capable of being magnified into oflfences. 
• • No man stands long before the public and bears a part 
in great affairs without giving openings to censorious 
criticism. Fiercer far than the light which beats upon 
a throne is the light which beats upon a presidential 
candidate, searching out all the recesses of his past life. 
Hence, when the choice lies between a brilliant man and 
a safe man, the safe man is preferred. Party feeling, 
strong enough to carry in on its back a man without 
conspicuous positive merits, is not always strong enough 
to procure forgiveness for a man with positive faults. 

A European finds that this phenomenon needs in its 
turn to be explained, for in the fi^ee countries of Europe 
brilliancy, be it eloquence in speech, or some striking 
achievement in war or administration, or the power 
through whatever means of somehow impressing the 
popular imagination, is what makes a leader triumphant. 
Why should it be otherwise in America ? Because in 
America party loyalty and party organization have been 
hitherto so perfect that any one put forward by the 
party will get the full party vote if his character is good 
and his " record," as they call it, unstained. The safe 
candidate may not draw in quite so many votes fix>ni. 
the moderate men of the other side as the brilliant on^ 
would, but he will not lose nearly so many fix)m his owe^ 
ranks. Even those who admit his mediocrity will vot^ 
straight when the moment for voting comes. Besides- 
the ordinary American voter does not object to medio - 
crity. He has a lower conception of the qualities 
rocjuisitc to make a statesman than those who direc 
publici opinion in Europe have. He likes his candidat— * 



CHAP. VIII IVHY GREA T MEN ARE NOT CHOSEN 103 

to be sensible, vigorous, and, above all, what he calls 
''magnetic," and does not value, because he sees no 
need for, originality or profundity, a fine culture 
or a wide knowledge. Candidates are selected to be 
run for nomination by knots of persons who, however 
expert as party tacticians, are usually commonplace 
men ; and the choice between those selected for 
nomination is made by a very large body, an assembly 
of over eight hundred delegates fi'om the local party 
organizations over the country, who are certainly 
no better than ordinary citizens. How this process 
works will be seen more fully when I come to speak of 
those Nominating Conventions which are so notable a 
feature in American politics. 

It must also be remembered that the merits of a 
President are one thing and those of a candidate another 
thing. An eminent American is reported to have said 
to fi'iends who wished to put him forward, " Gentle- 
men, let there be no mistake. I should make a 
good President, but a very bad candidate." Now to a 
party it is more important that its nominee should be 
a good candidate than that he should turn out a good 
President. A nearer danger is a greater danger. As 
Saladin says in The Talisman, " A wild cat in a chamber 
is more dangerous than a lion in a distant desert." 
It will be a misfortune to the party, as weU as to the 
country, if the candidate elected should prove a bad 
President. But it is a greater misfortune to the party 
that it should be beaten in the impending election, 
for the evil of losing national patronage will have come 
four years sooner. " B " (so reason the leaders), " who 
is one of our possible candidates, may be an abler man 
than A, who is the other. But we have a better chance 
of winning with A than with B, while X, the candidate of 



I04 THE NATIONAL GOVERNMENT parti 

our opponents, is anyhow no better than A. We must 
therefore run A." This reasoning is all the more 
forcible because the previous career of the possible 
candidates has generally made it easier to say who will 
succeed as a candidate than who will succeed as a Pre- 
sident; and because the wire-pullers with whom the 
choice rests are better judges of the former question 
than of the latter. 

After all, too, and this is a point much less obvious to 
Europeans than to Americans, a President need not be a 
man of brilliant intellectual gifts. Englishmen, imagin- 
ing him as something like their prime minister, assume 
that he ought to be a dazzling orator, able to sway 
legislatures or multitudes, possessed also of the con- 
structive powers that can devise a great policy or frame 
a comprehensive piece of legislation. They forget that 
the President does not sit in Congress, that he ought not 
to address meetings, except on ornamental and (usually) 
non-political occasions, that he cannot submit bills nor 
otherwise influence the action of the legislature. His 
main duties are to be prompt and firm in securing the 
due execution of the laws and maintaining the public 
peace, careful and upright in the choice of the executive 
officials of the country. Eloquence, whose value is apt 
to be overrated in all free countries, imagination, pro- 
fundity of thought or extent of knowledge, are all in so 
far a gain to him that they make him a bigger man, and 
help him to gain a greater influence over the nation, an 
influence which, if he be a true patriot, he may use for 
its good. But they are not necessary for the due dis- 
charge in ordinary times of the duties of his post A 
man may lack them and yet make an excellent President 
Four-fifths of his work is the same in kind as that which 
devolves on the chairman of a commercial company o 



CHAP. VIII WHY GREAT MEN ARE NOT CHOSEN 105 

the manager of a railway, the work of choosing good 
subordinates, seeing that they attend to their business, 
and taking a sound practical view of such administrative 
questions as require his decision. Firmness, common 
sense, and most of all, honesty, an honesty above all 
suspicion of personal interest, are the qualities which the 
country chiefly needs in its chief magistrate. 

So far we have been considering personal merits. 
But in the selection of a candidate many considerations 
have to be regarded besides personal merits, whether 
they be the merits of a candidate, or of a possible Presi- 
dent. The chief of these considerations is the amount 
of support which can be secured from different States 
or from different regions, or, as the Americans say, " sec- 
tions," of the Union. State feeling and sectional feel- 
ing are powerful factors in a presidential election. The 
North-west, including the States from Indiana to 
Minnesota, is now the most populous region of the 
Union, and therefore counts for most in an election. 
It naturally conceives that its interests wiU be best pro- 
tected by one who knows them from birth or residence. 
Hence prima facie a North-western man makes the best 
candidate. A large State casts a heavier vote in the 
election ; and every State is of course more likely to be 
carried by one of its own children than by a stranger, 
because his fellow-citizens, while they feel honoured by 
the choice, gain also a substantial advantage, having a 
better prospect of such favours as the administration 
can bestow. Hence, ccBteris pamhus, a man from a 
large State is preferable as a candidate. New York 
casts thirty -six votes in the presidential election, 
Pennsylvania thirty, Ohio twenty-three, Illinois twenty- 
two, while Vermont and Rhode Island have but four, 
Delaware, Nevada, and Oregon only three votes each. It 



io6 THE NATIONAL GOVERNMENT parti 

is therefore, parties being usually very evenly balanced, 
better worth while to have an inferior candidate 
from one of the larger States, who may carry the 
whole weight of his State with him, than a somewhat 
superior candidate from one of the smaller States, who 
will carry only three or four votes. The problem is 
further complicated by the fact that some States are 
already safe for one or other party, while others are 
doubtful. The North-western and New England States 
are most of them certain to go Republican : the Southern 
States are (at present) all of them certain to go Demo- 
cratic. It is more important to gratify a doubtful State 
than one you have got already ; and hence, ccBteris 
paribus, a candidate from a doubtful State, such as New 
York or Indiana, is to be preferred. 

Other minor disqualifying circumstances require less 
explanation. A Eoman Catholic, or an avowed dis- 
believer in Christianity, would be an impossible candi- 
date. Since the close of the Civil War, any one who 
fought, especially if he fought with distinction, in 
the Northern army, has enjoyed great advantages, for 
the soldiers of that army, still numerous, rally to 
his name. The two elections of General Grant, who 
knew nothing of politics, and the fact that his influence 
survived the faults of his long administration, are the 
best evidence of the weight of this consideration. It told 
heavily in favour of both Hayes and Garfield. Similarly 
a person who fought in the Southern army would 1)e a 
bad candidate, for he might alienate the North. 

On a railway journey in the Far West in 1883 I 
fell in with two newspaper men from the State of 
Indiana, who were taking their holiday. The conversa- 
tion turned on the next presidential election. They 
spoke hopefully of the chances for nomination by their 



CHAP. VIII IV//V GREA T MEN ARE NOT CHOSEN 107 

party of an Indiana man, a comparatively obscure 
person, whose name I had never heard. I expressed 
some surprise that he should be thought of. They 
observed that he had done well in State politics, that 
there was nothing against him, that Indiana would work 
for him. " But," I rejoined, '' ought you not to have a 
man of more commanding character. There is Senator 
A. Everybody tells me that he is the shrewdest and 
most experienced man in your party, and that he has 
a perfectly clean record. Why not run him ? " " Why, 
yes," they answered, '' that is all true. But you see he 
comes from a small State, and we have got that State 
already. Besides, he wasn't in the war. Our man was. 
Indiana's vote is worth having, and if our man is run, 
we can carry Indiana." 

" Surely the race is not to the swift, nor the battle 
to the strong, neither yet bread to the wise, nor yet 
riches to men of understanding, nor yet favour to men 
of skill, but time and chance happeneth to them all." 

These secondary considerations do not always 
prevail. Intellectual ability and force of character 
must influence the choice of a candidate, and their 
influence is sometimes decisive. They count for more 
when times are so critical that the need for a strong 
man is felt. Reformers declare that their weight will 
go on increasing as the disgust of good citizens with 
the methods of professional politicians increases. But 
for many generations past it is not the greatest men 
in the Roman Church that have been chosen Popes, 
nor the most brilliant men in the Anglican Church 
that have been appointed Archbishops of Canterbury. 

Although several Presidents have survived their 
departure from office by many years, only one, John 
Quincy Adams, has played a part in politics after quit- 



io8 THE NATIONAL GOVERNMENT parti 

ting the White House. ^ It may be that the ex-President 
has not been a great leader before his accession to 
oflBce ; it may be that he does not care to exert 
himself after he has held and dropped the great 
prize, and found (one may safely add) how little of 
a prize it is. Something, however, must also be 
ascribed to other features of the political system of 
the country. It is often hard to find a vacancy in 
the representation of a given State through which to 
re-enter Congress ; it is disagreeable to recur to the arts 
by which seats are secured. Past greatness is rather an 
encumbrance than a help to resuming a political career. 
Exalted power, on which the unsleeping eye of hostile 
critics was fixed, has probably disclosed aU a President's 
weaknesses, and has either forced him to make enemies 
by disobliging adherents, or exposed him to censure for 
subservience to party interests. He is regarded as 
having had his day ; he belongs already to the past, and 
unless, like Grant, he is endeared to the people by the 
memory of some splendid service, he soon sinks into the 
crowd or avoids neglect by retirement. Possibly he 
may deserve to be forgotten ; but more frequently he is 
a man of sufficient ability and character to make the 
experience he has gained valuable to the country, could 
it be retained in a place where he might turn it to 
account. They managed things better at Rome in the 
days of the republic, gathering into their Senate all the 
fame and experience, all the wisdom and skill, of those 
who had ruled and fought as consuls and praetors at 
home and abroad. 

** What shall we do with our ex-Presidents ? '' is a 

^ J. Q. Adams was elected to the House of Representatives within 
three years from his presidency, and there became for seventeen years 
the fearless and formidable advocate of what may be called the national 
theory of the Constitution against the slaveholders 



CHAP. VIII IVI/Y GREAT MEN ARE NOT CHOSEN 109 

question often put in America, but never yet answered. 
The position of a past chief magistrate is not a happy 
one. He has been a species of sovereign at home. He 
is received — General Grant was — with almost royal 
honours abroad. His private income may be insufficient 
to enable him to live in ease, yet he cannot without loss 
of dignity, the country's dignity as well as his own, go 
back to practice at the bar or become partner in a 
mercantile firm. If he tries to enter the Senate, it may 
happen that there is no seat vacant for his own State, 
or that the majority in the State legislature is against 
him. It has been suggested that he might be given a 
seat in that chamber as an extra member ; but to this 
plan there is the objection that it would give to the 
State from which he comes a third senator, and thus put 
other States at a disadvantage. In any case, however, 
it would seem only right to bestow such a pension as 
would relieve him from the necessity of re-entering 
business or a profession. 

We may now answer the question from which we 
started. Great men are not chosen Presidents, firstly, 
because great men are rare in politics ; secondly, because 
the method of choice does not bring them to the top ; 
thirdly, because they are not, in quiet times, absolutely 
needed. Subsequent chapters will, I hope, further 
elucidate the matter. Meantime, I may observe that 
the Presidents, regarded historically, fall into three 
periods, the second inferior to the first, the third rather 
better than the second. 

Down till the election of Andrew Jackson in 1828, 
all the Presidents had been statesmen in the European 
sense of the word, men of education, of administrative 
experience, of a certain largeness of view and dignity of 
character. AU except the first two had served in the 



no THE NATIONAL GOVERNMENT parti 

great office of secretary of state ; all were well known 
to the nation from the part they had played. In the 
second period, jfrom Jackson till the outbreak of the Civil 
War in 1861, the Presidents were either mere politicians, 
such as Van Buren, Polk, or Buchanan, or else successful 
soldiers,^ such as Harrison or Taylor, whom their party 
found useful as figure-heads. They were intellectual pig- 
mies beside the real leaders of that generation — Clay, Cal- 
houn, and Webster. A new series begins with Lincoln in 
1861. He and General Grant his successor, who cover 
sixteen years between them, belong to the history of the 
world. The other less distinguished Presidents of this 
period contrast favourably with the Polks and Pierces 
of the days before the war, but they are not, like the 
early Presidents, the first men of the country. If w^e 
compare the eighteen Presidents who have been elected 
to office since 1789 with the nineteen English prime 
ministers of the same hundred years, there are but six 
of the latter, and at least eight of the former whom 
history calls personally insignificant, while only Wash- 
ington, Jefferson, Lincoln, and Grant can claim to 
belong to a fi'ont rank represented in the English list 
by seven or possibly eight names. ^ It would seem 
that the natural selection of the English parliamentar}^ 
system, even as modified by the aristocratic habits of 
that country, has more tendency to bring the highest 
gifts to the highest place than the more artificial selec- 
tion of America. 

^ Jackson himself was something of both politician and soldier, a 
strong character, but a narrow and uncultivated intellect 

2 The American average would be further lowered were we to reckon 
in the four Vice-Presidents who have succeeded on the death of the 
President. Yet the English system does not always secure men personally 
eminent. Addington, Perceval, and Lord Qoderich are no bigger than 
Tyler or FiUmore, which is saying little enough. 



CHAPTER IX 



THE CABINET 



There is in the government of the United States no 
such thing as a Cabinet in the English sense of the 
term. But I use the term, not only because it is current 
in America to describe the chief ministers of the Presi- 
dent, but also because it calls attention to the remark- 
able difference which exists between the great officers of 
State in America and the similar officers in the free 
countries of Europe. 

Almost the only reference in the Constitution to the 
ministers of the President is that contained in the power 
given him to "require the opinion in writing of the 
principal officer in each of the executive departments 
upon any subject relating to the duties of their respec- 
tive offices." All these departments have been created 
by Acts of Congress. Washington began in 1789 with 
four only, at the head of whom were the following four 
officials : — 

Secretary of State. 
Secretary of the Treasury. 
Secretary of War. 
Attorney-General. 

In 1798 there was added a Secretary of the Navy, 



112 THE NATIONAL GOVERNMENT parti 



in 1829 a Postmaster-General/ and in 1849 a Secretary 
of the Interior. 

These seven now make up what is called the Cabinet.^ 
Each receives a salary of $8000 (£1600). All are 
appointed by the President, subject to the consent of 
the Senate (which is practically never refused), and 
may be removed by the President alone. Nothing 
marks them off from any other officials who might be 
placed in charge of a department, except that they are 
summoned by the President to his private council. 

None of them can vote in Congress, Art. xi. § 6 of 
the Constitution providing that " no person holding any 
ofl&ce under the United States shall be a member of 
either House during his continuance in office." 

This restriction was intended to prevent the Presi- 
dent not merely from winning over individual members 
of Congress by the allurements of office, but also from 
making his ministers agents in corrupting or unduly 
influencing the representatives of the people, as George 
III. and his ministers corrupted the English Parliament. 
There is a passage in the Federalist (Letter xl.) which 
speaks of " Great Britain, where so great a proportion of 
the members are elected by so small a proportion of the 
people, where the electors are so corrupted by the 
representatives, and the representatives so corrupted by 
the Crown." The Fathers of the Constitution were so 
resolved to avert this latter form of corruption that they 

1 The postmaster-general had heen previously deemed a subordinate 
in the Treasury department, although the office was organized by Act of 
Congress in 1794 ; he has been held to belong to the cabinet since Jackson 
in 1829 invited him to cabinet meetings. 

2 There is also a commissioner of agriculture with a salary of $3000 
a year, but his duties are confined to the collection and publication of 
information, and to the. *' procuring and distributing of new and valuable 
seeds and plants." And an Inter-state Commerce Commission, with powei-s 
over railways, was created in February 1887 by Act of Congress. 



CHAP. IX THE CABINET 113 

included in the Constitution the provision just mentioned. 
Its wisdom has sometimes been questioned. But it 
deserves to be noticed that the Constitution contains 
nothing to prevent ministers from being present in 
either House of Congress and addressing it,^ as the 
ministers of the King of Italy or of the French President 
may do in either chamber of Italy or France.^ It is 
entirely silent on the subject of communications between 
officials (other than the President) and the representatives 
of the people. In Washington's days ministers did occa- 
sionally speak to Congress, but they soon ceased to do 
so, and now never appear before any body larger than a 
committee. We shaU presently see how this arrange- 
ment, while seeming to defend Congress against presi- 
dential intrigue, tends to weaken its legislative efficiency 
and to embarrass its relations with the executive. 

The President has the amplest range of choice for his 
ministers. He usually forms an entirely new cabinet when 
he enters office, even if he belongs to the same party as 
his piedecessor. He may take, he sometimes does take, 
men who not only have never sat in Congress, but have 
not figured in politics at all, who may never have sat 
in a State legislature nor held the humblest office. For 
instance, in 1869 President Grant offered the post of 
secretary of the treasury to Mr. A. T. Stewart, the owner 
of a gigantic dry goods warehouse in New York, who 

^ In February 1881 a committee of eight senators unanimously 
reported in favour of a plan to give seats (of course without the right to 
vote) in both Houses of Congress to cabinet ministers, they to attend on 
alternate days in the Senate and in the House. The committee recom- 
mended that the necessary modification in the rules should be made, add- 
ing that they had no doubt of the constitutionality of the proposal* 
Nothing has so far been done to carry out this report 

2 The Italian ministers usually are members of one or other House. 
Of course they cannot vote except in the House to which they have been 
chosen. 

VOL. I I 



114 THE NATIONAL GOVERNMENT parti 

had never so much as made a political speech.^ Gene- 
rally of course the persons chosen have already made 
for themselves a position of at least local importance. 
Often they are those to whom the new President owes 
his election, or to whose influence with the party he 
looks for support in his policy. ^ Sometimes they have 
been hU m^t prominent impetitor, for the'party 
nominations. Thus Mr. Lincoln in 1860 appointed Mr. 
Seward and Mr. Chase to be his secretary of state and 
secretary of the treasury respectively, they being the 
two men who had come next after him in the selection 
by the Republican party of a presidential candidate. 

The most dignified place in the cabinet is that of the 
Secretary of State. It is the great prize often bestowed 
on the man to whom the President is chiefly indebted 
for his election, or at any rate on one of the leaders of 
the party. In early days, it was regarded as the 
stepping-stone to the presidency. Jefferson, Madison, 
Monroe, and J. Q. Adams had all served as secretaries 
to preceding presidents. The conduct of foreign affairs 
is the chief duty of the State department : its head 
has therefore a larger stage to play on than any other 
minister, and more chances of fame. His personal 
importance is all the greater because the President is 

^ The nomination was withdrawn because it was discovered that Mr. 
Stewart, being engaged in business, was ineligible by statute. 

2 In Mr. Cleveland's cabinet, fonned in 1886, the secretary of state 
had been for sixteen years a senator, and recognized as one of the leaders 
of his party ; the secretary of the treasury was a leading politician in 
New York State who had never sat in Congress ; the secretary of war had 
been a judge of the supreme court of Massachusetts, and candidate for 
the governorship of that State ; the secretary of the navy was a lawyer, 
and a prominent politician in New York ; the secretary of the interior 
had sat in the House of Representatives, and had been for nine years a 
senator ; the postmaster-general was a lawyer practising in Wisconsin, 
and a political leader there ; the attorney-general had been governor of 
his State, and (for eight years) a senator. 



CHAP. IX THE CABINET 115 

usually SO much absorbed by questions of patronage as 
to be forced to leave the secretary to his own devices. 
Hence the foreign policy of the administration is 
practically that of the secretary, except so far as the 
latter is controlled by the Senate, and especially by the 
chairman of its committee on Foreign Relations. The 
State department has also the charge of the great seal 
of the United States, keeps the archives, publishes the 
statutes, and of course instructs and controls the 
diplomatic and consular services. It is often said of 
the President that he is ruled, or as the Americans 
express it, " run," by his secretary ; but naturally this 
happens only when the secretary is the stronger or more 
experienced man, and in the same way it has been said 
of Presidents before now that they were, like sultans, 
ruled by their wives, or by their boon companions. 

The Secretary of the Treasury is minister of finance. 
His function was of the utmost importance at the 
beginning of the government, when a national system 
of finance had to be built up and the Federal 
Government rescued jfrom its grave embarrassments. 
Hamilton, who then held the oflBice, effected both. 
During the War of Secession, it became again powerful, 
owing to the enormous loans contracted and the quanti- 
ties of paper money issued, and it remains so now, 
because it has the management (so far as Congress 
permits) of the currency and the national debt. The 
secretary has, however, by no means the same range of 
action as a finance minister in European countries, for 
as he is excluded jfrom Congress, although he regularly 
reports to it, he has nothing directly to do with the 
imposition of taxes, and very little with the appropria- 
tion of revenue to the various burdens of the State. ^ 

^ See foii^ chapter on Congi-essional Finance, where it will be shown 



ii6 THE NATIONAL GOVERNMENT parti 

The Secretary of the Interior is far jfrom being the 
omnipresent power which a minister of the interior is in 
France or Italy, or even a Home Secretary in England, 
since nearly all the functions which these oflBicials dis- 
charge belong in America to the State governments or 
to the organs of local government. He is chiefly 
occupied in the management of the public lands, still of 
immense value, despite the lavish grants made to 
railway companies, and with the conduct of Indian 
affairs, a troublesome and unsatisfactory department, 
which has always been a reproach to the United States, 
and will apparently continue so till the Indians them- 
selves disappear or become civilized. Patents and 
pensions, the latter a source of great expense and 
abuse, also belong to his province. 

The duties of the Secretary of War, the Secretary of 
the Navy, and the Postmaster-General may be gathered 
from their names. But the Attorney-General is suffi- 
ciently diff'erent from his EngUsh prototype to need a 
word of explanation. He is not only public prosecutor 
and standing counsel for the United States, but also to 
some extent what is called on the European continent a 
minister of justice. He has a general oversight — it can 
hardly be described as a control — of the Federal judicial 
departments, and especially of the prosecuting officers 
called district attorneys, and executive court officers, 
called United States marshals. He is the legal adviser 
of the President in those delicate questions, necessarily 
frequent under the Constitution of the United States, 
which arise as to the limits of the executive power and 
the relations of Federal to State authority, and generally 
in all legal matters. His opinions are frequently pub- 

that the chairmen of the committees of Ways and Means and of Appro- 
priations are practically additional ministers of finance. 






CHAP. IX THE CABINET 117 

lished officially, as a justification of the President's con- 
duct, and an indication of the view which the executive 
takes of its legal position and duties in a pending 
matter.^ The attorney -general is always a lawyer of 
some position, but not necessarily in the front rank of 
the profession, for political considerations have much to 
do with determining the President's choice.^ 

It will be observed that from this list of ministerial 
offices several are wanting which exist in Europe. Thus 
there is no colonial minister, because no colonies ; no 
minister of education, because that department of busi- 
ness belongs to the several States ;« no minister of 
public worship, because the United States Government 
has nothing to do with any particular form of religion ; 
no minister of commerce, because the activity of the 
Federal Government in that direction, although increas- 
ing, is still limited ; no minister of public works, because 
grants made for this purpose come direct from Congress 
without the intervention of the executive, and are 
applied as Congress directs.^ Much of the work which in 
Europe would devolve on members of the administration 
falls in America to conamittees of Congress, especially 

1 Another variance from the practice of England, where the opinions 
of the law ofl&cers of the Crown are always treated as confidential. 

2 The solicitor-general is a sort of assistant to the attorney, and not 
(as in England) a colleague. 

3 There was established twenty years ago a Bureau of Education, 
attached to the department of the Interior, but its function is only to 
collect and diflPuse information on educational subjects. This it does with 
assiduity and success. 

* Money voted for river and harbour improvements is voted in sums 
appropriated to each particular piece of work. The work is supervised 
by officers of the Engineer corps of the United States army, under the 
general direction of the war department Public buildings are erected 
under the direction of an official called the supervising architect, who is 
attached to the treasury department The signal service weather 
bureau is a branch of the war department, the coast survey of the navy 
department 



1 1 8 THE NA TIONAL GO VERNMENT part i 

to committees of the House of Kepresentatives. This 
happens particularly as regards taxation, public works, 
and the management of the Territories, for each of which 
matters there exists a committee in both Houses. The 
well-meant attempt of the founders of the Constitution 
to keep the legislative and executive departments dis- 
tinct has resulted in leading the legislature to interfere 
with ordinary administration more directly and fre- 
quently than European legislatures are wont to do. It 
interferes by legislation because it is debarred from 
interfering by interpellation. 

The respective positions of the President and his 
ministers are, as has been already explained, the reverse 
of those which exist in the constitutional monarchies of 
Europe. There the sovereign is irresponsible and the 
minister responsible for the acts which he does in the 
sovereign's name. In America the President is respon- 
sible because the minister is nothing more than his 
servant, bound to obey him, and independent of Con- 
gress. The minister s acts are therefore legally the acts 
of the President. Nevertheless the minister is also 
responsible and liable to impeachment for offences com- 
mitted in the discharge of his duties.^ The question 
whether he is, as in England, impeachable for giving bad 
advice to the head of the State has never arisen, but 
upon the general theory of the Constitution it would 
rather seem that he is not, unless of course his bad 
counsel should amount to a conspiracy with the Presi- 
dent to commit an impeachable offence. In France 
the responsibiUty of the President's ministers does not in 
theory exclude the responsibility of the President him- 

^ Only once has a minister been impeached. He resigned just before 
the resolution of the House to impeach him was passed, and so was 
acquitted on the ground of want of jurisdiction. 



CHAP. IX THE CABINET 119 

I 

self, although practically of course it makes a great 
difference, because he, like the English Crown, chooses 
ministers supported by a majority in the chambers. 

The position of a cabinet minister appears to carry 
with it rather less distinction than in England. For- 
merly he took precedence of the senators, but now they 
have established their claim to walk before him on 
public occasions. The point is naturally of more im- 
portance as regards the wives of the claimants than as 
regards the claimants themselves. 

So much for the ministers taken separately. It 
remains to consider how an American Administration 
works as a whole, this being in Europe, and particularly 
in England, the most peculiar and significant feature of 
the parliamentary or so-called " cabinet " system. 

In America the administration does not work as a 
whole. It is not a whole. It is a group of persons, 
each individually dependent on and answerable to the 
President, but with no joint policy, no collective re- 
sponsibility.^ 

When the Constitution was established, and George 
Washington chosen first President under it, it was in- 
tended that the President should be outside and above 
party, and the method of choosing him by electors was 
contrived with this very view. Washin^on belonged 
to no party, nor indeed, though diverging tendencies 
were already manifest, had parties yet begun to exist. 
There was therefore no reason why he should not select 
his ministers jfrom all sections of opinion. He was the 

^ In America people usually speak of the President and his min- 
isters as the '^ administration," not as the ^ government,'' apparently because 
he and they are not deemed to govern in the European sense. The latter 
expression does not seem to be very old in England. Thirty years ago 
people usually said " the ministry " when they now say " the govern- 
ment." 



I20 THE NATIONAL GOVERNMENT parti 

executive magistrate, who had to conduct the adminis- 
tration of the country. As he was responsible to the 
nation and not to a majority in Congress, he was not 
bound to choose persons who agreed with the majority 
^ in Congress. As he, and not as in England, the ministry, 
was responsible for executive acts done, he had to con- 
sider, not the opinions or associations of his servants, 
but their capacity and integrity only. Washington 
chose as secretary of state Thomas Jefferson, already 
famous as the chief draftsman of the Declaration of In- 
dependence, and as attorney-general another Virginian, 
Edmund Randolph, both men of extreme democratic 
leanings, disposed to restrict the action of the Federal 
Government within narrow limits. For secretary of the 
treasury he selected Alexander Hamilton of New York, 
and for secretary of war Henry Knox of Massachusetts. 
Hamilton was by far the ablest man among those 
who soon came to form the Federalist party, the party 
which called for a strong executive, and desired to 
subordinate the States to the central authority. He 
soon became recognized as its leader. Knox was of the 
same way of thinking. Dissensions presently arose 
between Jefferson and Hamiltx^n, ending in open hostiUty, 
but Washington retained them both as ministers till 
Jefferson retired in 1794 and Hamilton in 1795. The 
second President, John Adams, kept on the ministers of 
his predecessor, being in accord with their opinions, for 
they and he belonged to the now full-grown Federalist 
party. But before he quitted office he had quarrelled 
with most of them, having taken important steps with- 
out their knowledge and against their wishes. Jeffer- 
son, the third President, was a thorough-going party 
leader, who naturally chose his ministers from his own 
political adherents. As all subsequent Presidents have 



CHAP. IX THE CABINET 121 

been seated by one or other party, all liav^ felt bound 
to appoint a party cabinet. Their party ^pects it from 
them ; and they naturally prefer to be surrounded and 
advised by their own friends. 

So far, an American cabinet resembles an EngUsh 
one. It is composed exclusively of members of one 
party. But now mark the diflFerences. The parlia- 
mentary system of England and of those countries 
which like Belgium, Italy, and the self-governing British 
colonies, have more or less modelled themselves upon 
England, rests on four principles. 

The head of the executive (be he king or gover- 
nor) is irresponsible. Kesponsibility attaches to the 
cabinet, i.e. to the body of ministers who advise him, 
so that if he errs, it is through their fault ; they suflFer 
and he escapes. The ministers cannot allege, as a de- 
fence for any act of theirs, the command of the Crown. 
If the Crown gives them an order of which they dis- 
approve, they ought to resign. 

The ministers sit in the legislature, practically form- 
ing in England, as has been observed by the most acute 
of English constitutional writers, a committee of the 
legislature, chosen by the majority for the time being. 

The ministers are accountable to the legislature, and 
must resign oflBice ^ as soon as they lose its confidence. 

The ministers are jointly as well as severally liable 
for their acts : i.e. the blame of an act done by any of 
them falls on the whole cabinet, unless one of them 
chooses to take it entirely on himself and retire from 
office. Their responsibility is collective. 

None of these principles holds true in America. The 
President is personally responsible for his acts, not 

^ In England and some other countries (g.gf. the self-governing 
British colonies) they have the alternative of dissolving Parliament. 



122 THE NATIONAL GOVERNMENT parti 

indeed to Congress, but to the people, by whom he is 
chosen. No means exist of enforcing this responsibility, 
except by impeachment, but as his power lasts for four 
years only, and is much restricted, this is no serious 
evil. He cannot avoid responsibility by alleging the 
advice of his ministers, for he is not bound to follow it, and 
they are bound to obey him or retire. The ministers 
do not sit in Congress. They are not accountable to it, 
but to the President, their master. It may request 
their attendance before a committee, as it may require 
the attendance of any other witness, but they have no 
opportunity of expounding and justifying to Congress 
as a whole their own, or rather their master's, policy. 
Hence an adverse vote of Congress does not aflFect their 
or his position. If they propose to take a step which 
requires money, and Congress refuses the requisite 
appropriation, the step cannot be taken. But a dozen 
votes of censure will neither compel them to resign nor 
oblige the President to pause in any line of conduct 
which is within his constitutional rights. This, however 
strange it may seem to a European, is a necessary con- 
sequence of the fact that the President, and by conse- 
quence his cabinet, do not derive their authority jfrom 
Congress. Suppose (as befell in 1878-9) a Republican 
President, with a Democratic majority in both Houses 
of Congress. The President, unless of course he is 
convinced that the nation has changed its mind since it 
elected him, is morally bound to follow out the policy 
which he professed as a candidate, and which the 
majority of the nation must be held in electing him to 
have approved. That policy is, however, opposed to the 
views of the present majority of Congress. They are 
quite right to check him as far as they can. He is 
quite right to follow out his own views and principles in 



CHAP. IX THE CABINET 123 

spite of them so far as the Constitution and the 
funds at his disposal permit. A deadlock may follow. 
But deadlocks may happen under any system, except 
that of an omnipotent sovereign, be he a man or an 
assembly, the risk of deadlocks being indeed the price 
which a nation pays for the safeguard of constitutional 
checks. 

In this state of things one cannot properly talk of 
the cabinet apart jfrom the President. An American 
administration resembles not so much the cabinets of 
England and France as the group of ministers who 
surround the Ozar or the Sultan, or who exeputed the 
bidding of a Roman emperor like Constantine or 
Justinian. Such ministers are severally responsible to 
their master, and are severally called in to counsel him, 
but they have not necessarily any relations with one 
another, nor any duty of collective action. So while 
the President commits each department to the minister 
whom the law provides, and may if he chooses leave it 
altogether to that minister, the executive acts done are 
his own acts, by which the country will judge him ; and 
still more is his policy as a whole his own policy, and 
not the policy of his ministers taken together. The 
ministers seldom meet in council, and have comparatively 
little to settle when they do meet, since they have no 
parliamentary tactics to contrive, no bills to prepare, 
few questions of foreign policy to discuss. They are 
not a government, as Europeans understand the term ; 
they are a group of heads of departments, whose chief, 
though he usually consults them separately, is some- 
«mi gW to b4 them together b. one room for a talk 
about politics. A significant illustration of the contrast 
between the English and American systems may be found 
in the fact that whereas an English king never now sits in 



124 THE NATIONAL GOVERNMENT parti 

his own cabinet,^ because if he did he would be deemed 
accountable for its decisions, an American President 
always does, because he is accountable, and really needs 
advice to help him, not to shield him.^ 

The so-called cabinet is unknown to the statutes as 
well as to the Constitution of the United States. So is 
the English cabinet unknown to the law of England. 
But then the English cabinet is a part, is, in fact, a 
committee, though no doubt an informal committee, of 
a body as old as Parliament itself, the Privy Council, or 
Curia Kegis. Of the ancient institutions of England which 
reappear in the Constitution of the United States, the Privy 
Council is not one.^ It may have seemed to the Convention 
of 1787 to be already obsolete. Even in England it was 
then already a belated survival jfrom an earlier order of 
things, and now it lives on only in its committees, three 
of which, the Board of Trade, the Education department, 
and the Agricultural department, serve as branches of 
the administration, one, the Judicial Committee, is a law 
court, and one, the Cabinet, is the virtual executive of the 
nation. The framers of the American Constitution saw 
its unsuitability to their conditions. It was nominated, 
while with them a council must have been elective. Its 
only effect would have been to control the President, 
but for domestic administration control is scarcely 
needed, because the President has only to execute the 
laws, while in foreign affairs and appointments the 

^ Queen Anne was the last English sovereign who sat in her own 
cabinet council, though indeed the cabinet had not yet then become the 
close body it is now. 

2 Another illustration of the contrast may be found in the fact that 
when the head of one of the seven departments is absent from Washington 
the under secretary of the department is often asked to replace him in the 
cabinet council. 

3 A privy council however appears in the original Constitution of 
Delaware. (See ^o«^, Chapter XXXVII.) 



CHAP. IX THE CABINET 125 

Senate controls him already. A third body, over and 
above the two Houses of Congress, was in fact superflu- 
ous. The Senate may appear in some points to resemble 
the English Privy Council of the seventeenth century, 
because it advises the executive ; but there is all the 
difierence in the world between being advised by those 
whom you have yourself chosen and those whom election 
by others forces upon you. So it happens that the 
relations of the Senate and the President are seldom 
cordial, much less confidential, even when he and the 
majority of the Senate belong to the same party, because 
the Senate and the President are rival powers jealous 
of one another. 



CHAPTER X 



THE SENATE 



The National Legislature of the United States, called 
Congress, consists of two bodies, sufficiently dissimilar in 
composition, powers, and character to require a separate 
description. Their respective functions bear some re- 
semblance to those of the two Houses of the English 
Parliament, which had before 1787 suggested the creation 
of a double-chambered legislature in all but three of the 
original thirteen States of the Confederation. Yet the 
differences between the Senate and the British House 
of Lords, and in a less degree between the House of 
Representatives and the British House of Commons, 
are so considerable that the English reader must be 
cautioned against appljdng his English standards to the 
examination of the American system.^ 

The Senate consists of two persons from each State, 
who must be inhabitants of that State, and at least thirty 
years of age. They are elected by the legislature of 
their State for six years, and are re-eligible. One -third 
retire every two years, so that the whole body is re- 
newed in a period of six years, the old members being 
thus at any given moment twice as numerous as the new 

^ ** How many bishops have you got in your Upper House ? " is the 
question which an eminent Englishman is reported to have asked soon 
after his arrival in America. 



CHAP. X THE SENATE 127 

members elected within the last two years. As there are 
now thirty-eight States, the number of senators, origin- 
ally twenty-six, is now seventy-six. This great and 
unforeseen augmentation must be borne in mind when 
considering the purposes for which the Senate was 
created, for some of which a small body is fitter than a 
large one. As there remain only eight Territories ^ which 
can be formed into States, the number of senators will not 
(unless, indeed, existing States are divided, or more than 
one State created out of some of the Territories) rise 
beyond ninety- two. This is of course much below the 
present nominal strength of the English House of Lords ^ 
(about 560), and below that of the French Senate (300), 
and the Prussian Herrenhaus (432). No senator can 
hold any office under the United States. The Vice-Pre- 
sident of the Union is ex officio president of the Senate, 
but has no vote, except a casting vote when the numbers 
are equally divided. Failing him (if, for instance, he 
dies, or falls sick, or succeeds to the presidency), the 
Senate chooses one of its number to be president ^ro 
tempore. His authority in questions of order is very 
limited, the decision of such questions being held to 
belong to the Senate itself.* 

The functions of the Senate fall into three classes — 

1 I reckon in neither the Indian territory, which lies west of Arkansas, 
nor Alaska, because these districts are not likely within an assignable 
time to contain a civilized population such as would entitle them to be 
formed into States. 

2 At the accession of George IIL the House of Lords numbered only 
174 members. 

3 The powers of the Lord Chancellor as Speaker of the English House 
of Lords are much narrower than those of the Speaker in the House of 
Commons. It is worth notice that as the Vice-President is not chosen by 
the Senate, but by the people, and is not strictly speaking a member of 
the Senate, so the Lord Chancellor is not chosen to preside by the House 
of Lords, but by the sovereign, and is not necessarily a peer. This, how- 
ever, seems to be merely a coincidence, and not the result of a wish to 
imitate England. 



128 THE NATIONAL GOVERNMENT parti 

legislative, executive, and judicial.^ Its legislative func- 
tion is to pass, along with the House of Representatives, 
bills which become Acts of Congress on the assent of the 
President, or even without his consent if passed a second 
time by a two-thirds majority of each House, after he 
has returned them for reconsideration. Its executive 
functions are : — (a) To approve or disapprove the 
President's nominations of Federal ofl&cers, includ- 
ing judges, ministers of state, and ambassadors. (6) 
To approve, by a majority of two-thirds of those pre- 
sent, of treaties made by the President — i.e. if less than 
two-thirds approve, the treaty falls to the ground. Its 
judicial function is to sit as a court for the trial of im- 
peachments preferred by the House of Representatives. 
The most conspicuous, and what was at one time 
deemed the most important feature of the Senate, is that 
it represents the several States of the Union as separate 
commonwealths, and is thus an essential part of the 
Federal scheme. Every State, be it as great as New 
York or as small as Delaware, sends two senators, no 
more and no less.^ This arrangement was long resisted 
by the delegates of the larger States in the Convention 
of 1787, and ultimately adopted because nothing less 
would reassure the smaller States, who feared to be 

1 To avoid prolixity, I do not give in the text aU the details of the 
constitutional powers and duties of the Houses of Congress : these wiU 
be found in the text of the Constitution printed in the Appendix. 

2 New York is twice as large as Scotland, and as populous as Scotland, 
Northumberland, and Durham taken together. Delaware is a little smaUer 
than Norfolk, with about the population of Bedfordshire. It is therefore 
as if Bedfordshire had in one House of a British legislature as much 
weight as all Scotland together with Northumberland and Durham, a state 
of things not very conformable to democratic theory. Nevada has now a 
population about equal to that of Caithness (40,000), but is as powerful in 
the Senate as New York. This State, which consists of burnt-out mining 
camps, is really a sort of rotten borough for and controlled by the great 
** silver men." 



CHAP. X THE SENATE 129 

overborne by the larger. It is now the provision of the 
Constitution most difficult to change, for " no State can 
be deprived of its equal suffrage in the Senate without 
its consent," a consent most unlikely to be given. There 
has never, in point of fact, been any division of interests 
or consequent contest between the great States and the 
small ones.^ But the provision for the equal representa- 
tion of all States had the important result of making the 
slave-holding party, during the thirty years which pre- 
ceded the Civil War, eager to extend the area of slavery 
in order that by creating new Slave States they might 
maintain at least an equality in the Senate, and thereby 
prevent any legislation hostile to slavery. 

The plan of giving representatives to the States as 
commonwealths has had several useful results. It has 
provided a basis for the Senate unlike that on which the 
other House of Congress is chosen. Every nation which 
has formed a legislature with two houses has experienced 
the difficulty of devising methods of choice sufficiently 
different to give a distinct character to each house. 
Italy has a Senate composed of persons nominated by 
the Crown. The Prussian House of Lords is partly 
nominated, partly hereditary, partly elective. The 
Spanish senators are partly hereditary, partly official, 
partly elective. In the Germanic Empire, the Federal 
Council consists of delegates of the several kingdoms 
and principalities. France appoints her senators by 
indirect election. In England the members of the 
House of Lords now sit by hereditary right ; and those 
who propose to reconstruct that ancient body are at 
their wits' end to discover some plan by which it may 
be strengthened, and made practically useful, without 

^ Hamilton perceived that this would be so ; see his remarks in the 
Constitutional Convention of New York in 1788. — Elliot's Debates, p. 213. 

VOL. I K 



I30 THE NATIONAL GOVERNMENT parti 

such a direct election as that by which members are 
chosen to the House of Commons.^ The American plan, 
which is older than any of those in use on the European 
continent, is also better, because it is not only simple, 
but natural, i,e, grounded on and consonant with the 
political conditions of America. It produces a body 
which is both strong in itself and diflferent in its collec- 
tive character from the more popular house. 

It also constitutes, as Hamilton anticipated, a link 
between the State Governments and the National Gov- 
ernment. It is a part of the latter, but its members 
derive their title to sit in it from their choice by State 
legislatures. In one respect this connection is no un- 
mixed benefit, for it has helped to make the national 
parties powerful, and their strife intense, in these last- 
named bodies. Every vote in the Senate is so important 
to the great parties that they are forced to struggle for 
ascendency in each of the State legislatures by whom 
the senators are elected. The method of choice in these 
bodies was formerly left to be fixed by the laws of each 
State, but as this gave rise to much uncertainty and in- 
trigue, a Federal statute was passed in 1866 providing 
that each House of a State legislature shall first vote 
separately for the election of a Federal senator, and that 
if the choice of both Houses shall not fall on the same 
person, both Houses in joint meeting shall proceed to a 
joint vote, a majority of each House being present. 
Even under this arrangement, a senatorial election often 
leads to long and bitter struggles ; the minority en- 
deavouring to prevent a choice, and so keep the seat 

^ Under a recent statute, two persons may be appointed by the 
Crown to sit in the House of Lords as Lords of Appeal, with the 
dignity of baron for life. The Scotch and Irish peers enjoy hereditary 
peerages, but are elected to sit in the House of Lords, the latter for life, 
the former for each parliament. 



CHAP. X THE SENATE 131 

vacant. Quite recently in Illinois, Indiana, and New 
Jersey, the legislatures fought for months together over 
the election of a senator. 

The method of choosing the Senate by indirect elec- 
tion has excited the admiration of foreign critics, who 
have found in it a sole and sufl&cient cause of the ex- 
cellence of the Senate as a legislative and executive 
authority. I shall presently inquire whether the critics 
are right. Meantime it is worth observing that the 
election of senators has in substance almost ceased to be 
indirect. They are stiU nominally chosen, as under the 
letter of the Constitution they must be chosen, by the 
State legislatures. The State legislature means, of course, 
the party for the time dominant, which holds a party 
meeting (caucus) and decides on the candidate, who is 
thereupon elected, the party going solid for whomsoever 
the majority has approved. Now the determination of 
the caucus has almost always been arranged beforehand 
by the party managers. Sometimes when a vacancy in a 
senatorship approaches, the aspirants for it put themselves 
before the people of the State. Their names are dis- 
cussed at the State party convention held for the 
nomination of party candidates for State offices, and a 
vote in that convention decides who shall be the party 
nominee for the senatorship. This vote binds the party 
within and without the State legislature, and at the 
election of members for the State legislature, which 
immediately precedes the occurrence of the senatorial 
vacancy, candidates for seats in that legislature are 
generally expected to declare for which aspirant to the 
senatorship they will, if elected, give their votes. ^ 

1 The Constitution of the State of Nebraska (1875) aUows the electors 
in voting for members of the State legislature to " express by ballot their 
preference for some person for the office of U.S. senator. The votes cast 
for such candidates shall be canvassed and returned in the same manner 



132 THE NATIONAL GOVERNMENT parti 

Sometimes the aspirant, who is of course a leading 
State politician, goes on the stump in the interest of 
those candidates for the legislature who are prepared to 
support him, and urges his own claims while urging 
theirs.^ I do not say that things have, in all States, 
gone so far as to make the choice by the legislature 
of some particular person as senator a foregone con- 
clusion when the legislature has been elected. Circum- 
stances may change; compromises may be necessary; 
still, it is now generally true that in most States little 
freedom of choice remains with the legislature. The 
people, or rather those wire-pullers who manage the 
people and act in their name, have practically settled 
the matter at the election of the State legislature. So 
hard is it to make any scheme of indirect election work 
according to its original design ; so hard is it to keep 
even a written and rigid constitution from bending and 
warping under the actual forces of politics.' 



2 



as for State officers." This is an attempt to evade and by a side wind defeat 
the provision of the Federal Constitution which vests the choice in the 
legislature. 

^ This happened recently in Nebraska, and seems to be not uncom- 
mon. The famous struggle of Mr. Douglas cmd Mr. Lincoln for the Illinois 
senatorship in 1858 was conducted in a stump campaign. 

^ A proposal recently made to amend the Federal Constitutioi] 
by taking the election of senators away from the legislatures in order tc 
vest it in the people of each State is approved by some judicious publi- 
cists, who think that bad candidates will have less chance with the part^i 
at large and the people than they now have in bodies apt to be controUec 
by a knot of party managers. A nomination made for a popular electioi 
wiU at least be made publicly, whereas now a nomination for an electioi 
by a legislature may be made secretly. I subjoin the form which ihi 
proposal took in 1881 as a specimen of the form in which amendment 
to the Constitution may be submitted to Congress. 

46th Congress, In THE HoUSE OF REPRESENTATIVES, 

3rd Session. ot-^ r toot 

31s< January 1881. 

Read twice, referred to the Committee on the Judiciary, and oitiere< 
to be printed. 

Mr. Weaver introduced the following joint resolution : — 



CHAP. X THE SENATE 133 

Members of the Senate vote as individuals, that is to 
say, the vote a senator gives is his own and not that 
of his State. It was otherwise in the Congress of the 
old Confederation before 1789 ; it is otherwise in the 
present Federal Council of the German Empire, in which 
each State votes as a whole, though the number of 
her votes is proportioned to her population. Accord- 
ingly, in the American Senate, the two senators from 
a State may belong to opposite parties ; and this often 
happens in the case of senators from States in which 
the two great parties are pretty equally balanced, and the 
majority oscillates between them.^ Suppose Ohio to 
have to elect a senator in 1886. The Democrats have 
a majority in the State legislature ; and a Democrat is 
therefore chosen senator. In 1888 the other Ohio 
senatorship falls vacant. But by this time the balance 
of parties in Ohio has shifted. The Republicans control 

Joint Resolution 

Proposing an amendment to the Constitution of the United States, provid- 
ing for the election of Senators by vote of the people. 

Resolved by the Senate and House of Representatives of the United States of 
America in Congress assembled (two4hirds of each House coTicurring therein). 
That the following is hereby proposed as an amendment to the Constitu- 
tion of the United States, and when ratified by the Legislatures of three- 
fourths of the several States, shall be valid to all intents and purposes as 
a part of the Constitution, to wit : — 

Article — 

That so much of section third, article first, of the Constitution of the 
United States as provides that the Senators of the United States shall 
be chosen by the Legislatures thereof shall be amended so that the same 
shall read as follows : — 

" The Senate of the United States shaU be composed of two Senators 
from each State, to be chosen by the vote of the qualified electors in said 
States respectively, and at such time as shall be determined by Act of 
Congress." 

Similar proposals have been repeatedly made in subsequent Con- 
gresses, but never accepted by either House. 

^ It was arranged from the beginning of the Federal (Government that 
the two senatorships from the same State should never be vacant at the 
same time. 



134 THE NATIONAL GOVERNMENT parti 

the legislature; a Republican senator is therefore 
chosen, and goes to Washington to vote against his 
Democratic colleague. This fact has largely contributed 
to render the senators independent of the State legis- 
latures, for as these latter bodies sit for short terms (the 
larger of the two Houses usually for two years only), a 
senator has during the greater part of his six years' term 
to look for re-election not to the present but to a future 
State legislature.^ 

The length of the senatorial term was one of the 
provisions of the Constitution which were most warmly 
attacked and defended in 1788. A six years' tenure, it 
was urged, would turn the senators into dangerous 
aristocrats, forgetful of the legislature which had ap- 
pointed them ; and some went so far as to demand that 
the legislature of a State should have the right to recall 
its senators.^ Experience has shown that the term is 
by no means too long : and its length is one among the 
causes which have made it easier for senators thai for 
members of the House to procure re-election, a result 
which, though it oflfends the doctrinaires of democracy, 
has worked well for the country. Senators from the 
smaller States are more frequently re-elected than those 
from the larger, because in the small States the com- 
petition of ambitious men is less keen, politics less 
changeful, the people perhaps more steadily attached to 

^ If a vacancy occurs in a senatorship at a time when the State 
legislature is not sitting, the executive of the State is empowered to fill 
it up until the next meeting of the State legislature. This is sometimes an 
important power, especially if the vacancy occurs at a time when parties 
are equally divided in the Senate. 

2 This was recommended by a Pennsylvanian Convention, which met 
after the adoption of the Constitution to suggest amendments. See Elliot's 
DebateSy ii. p. 545. It was also much pressed by some members of the 
New York Convention. A State legislature sometimes passes resolutions 
instructing its senators to vote in a particular way, but the senators are 
of course in no way bound to regard such instructions. 



CHAP. X THE SENATE 135 

a man whom they have once honoured with their con- 
fidence. The senator from such a State generally finds 
it more easy to maintain his influence over his own 
legislature ; not to add that if the State should be 
amenable to the power of wealth, his wealth will tell for 
more than it could in a large State. Yet no small 
State was ever more controlled by one man than the 
great State of Pennsylvania by Mr. Simon Cameron, 
who represented it for eighteen years. In recent times 
it is the senators from the small States, such as Rhode 
Island, Vermont, and Delaware, who have been most fre- 
quently re-elected. The average age of the Senate is 
less than might be expected. Three-fourths of its 
members are under sixty. The importance of the State 
he represents makes no great diff'erence to the influence 
which a senator enjoys; this depends on his talents, 
experience, and character ; and as the small State sena- 
tors have often the advantage of long service and a safe 
seat, they are often among the most influential. 

The Senate resembles the Upper Houses of Europe, 
and differs from those of the British colonies, and of 
most of the States of the Union, in being a permanent 
body. It does not change all at once, as do bodies 
created by a single popular election, but undergdes an 
unceasing process of gradual change and renewal, like a 
lake into which streams bring fresh water to replace 
that which the issuing river carries out. This provision 
was designed to give the Senate that permanency of 
composition which might qualify it to conduct or con- 
trol the foreign policy of the nation.^ An incidental 
and more valuable result has been the creation of a set 
of traditions and a corporate spirit which have tended 

^ See Federalist, No. Ixi., and Hamilton's argument in the New 
York State Convention. Elliot's DehateSy vol. ii. p. 307. 



136 THE NATIONAL GOVERNMENT parti 

to form habits of dignity and self-respect. The new 
senators, being always in a minority, are readily assimi- 
lated ; and though the balance of power shifts from 
one party to another according to the predominance in 
the State legislatures of one or other party, it shifts 
more slowly than in bodies directly chosen all at once, 
and a policy is therefore less apt to be suddenly 
reversed. 

The legislative powers of the Senate being, except 
in one point, the same as those of the House of Repre- 
sentatives, will be described later. That one point is a 
restriction as regards money bills. On the ground that 
it is only by the direct representatives of the people 
that taxes ought to be levied, and in obvious imitation 
of the venerable English doctrine, which had already 
found a place in several State constitutions, the Constitu- 
tion (Art. i. § 7) provides that "All bills for raising revenue 
shall originate in the House of Representatives, but the 
Senate may propose or concur with amendments, as on 
other bills." In practice, while the House strictly 
guards its right of origination, the Senate largely 
exerts its power of amendment, and wrangles with the 
House over taxes, and still more keenly over appropria- 
tions. Almost every session ends with a dispute, a 
conference, a compromise. The system of committees, 
which is the most remarkable feature of the Senate's 
legislative procedure, will be considered in a sul)sequent 
chapter, while a note to the present chapter ^ presents 
an abstract of some of the more noteworthy of it^ 
rules. Among those rules there is none providing 
for a closure of debate, or limiting the length either 
of a debate or of a speech. The Senate is proud of 
having conducted its business without the aid of such 

^ This note will be found at the end of this volume. 



cHAP.x THE SENATE \yj 

reguktions, and this has been due, not merely to the 
small size of the assembly, but to the sense of its 
dignity which has usually pervaded its members, and 
to the power which the opinion of the whole body 
has exercised on each. Where every man knows his 
colleagues intimately, each, if he has a character to 
lose, stands in awe of the others, and has so strong 
a sense of his own interest in maintaining the 
moral authority of the Chamber, that he is slow to 
resort to extreme methods which might lower it in 
pubUc estimation. Till recently, systematic obstruction, 
or, as it is called in America, " filibustering," familiar to 
the House, was almost unknown in the calmer air of 
the Senate. When it was applied some years ago by 
the Democratic senators to stop a bill to which they 
strongly objected, their fconduct was not disapproved 
by the country, because the whole party, a minority 
very little smaller than the Republican majority, 
supported it, and people believed that nothing 
but some strong reason would have induced the 
whole party so to act. Accordingly the majority 
yielded. . Although the increased size of the body 
makes the despatch of business more difficult than 
formerly, it is hardly likely that the Senate will adopt 
any regulation limiting debate, for it prides itself on 
its traditions, and likes to mark the contrast between 
its own good manners and the turbulence of the more 
numerous House. In the winter session of 1883, the 
rules of procedure were subjected to a thorough re- 
vision, but no proposal of this nature was made. 

Divisions are taken, not by separating the senators 
into lobbies and counting them, as in the British Parlia- 
ment, but by calling the names of senators alphabetic- 
ally. The Constitution provides that one-fifth of those 



138 THE NATIONAL GOVERNMENT parti 

present may demand that the Yeas and Nays b^ entered 
in the journal. Every senator answers to his name 
with Aye or No. He may, however, ask the leave of 
the Senate to abstain from voting ; and if he is paired, 
he states, when his name is called, that he has paired 
with such and such another senator, and is therefore 
excused. No one is permitted to speak more than twice 
to the same question on the same day. 

When the Senate goes into executive session, the 
galleries are cleared and the doors closed, and the obliga- 
tion of secrecy is supposed to be enforced by the penalty 
of expulsion to which a senator, disclosing confidential 
proceedings, makes himself liable. Practically, how- 
ever, newspaper men find little difficulty in ascertain- 
ing what passes in secret session.^ The threatened 
punishment has never been inflicted, and occasions often 
arise when senators feel it to be desirable that the 
public should know what their colleagues have been 
doing. There has been for some time past a movement 
within the Senate against maintaining secrecy, particu- 
larly with regard to the confirming of nominations to 
office; and there is also a belief in the country that 
publicity would make for purity. But while some of 
the black sheep of the Senate love darkness because 
their works are evil, other members of undoubted re- 
spectability defend the present system because they 
think it supports the power and dignity of their body. 

^ Secrecy is said to be better observed in the case of discussions on 
treaties than where appointments are in question. Some years ago a 
Western newspaper published an account of what took place in a secret 
session. A committee appointed to inquire into the matter questioned 
every senator. Each swore that he had not divulged the proceedings, and 
the newspaper people also swore that their information did not come from 
any Senator. Nothing could be ascertained, and nobody was punished. 



CHAPTER XI 

THE SENATE AS AN EXECUTIVE AND JUDICIAL BODY 

The Senate is not only a legislative but also an execu- 
tive Chamber ; in fact in its early days the executive 
functions seem to have been thought the more im- 
portant ; and Hamilton went so far as to speak of the 
national executive authority as divided between two 
branches, the President and the Senate. These execu- 
tive functions are two, the power of approving treaties, 
and that of confirming nominations to ofl&ce submitted 
by the President. 

To what has already been said regarding the func- 
tions of the President and Senate as regards treaties 
(see above, Chapter VI.) I need only add that the Senate 
through its right of confirming or rejecting engagements 
with foreign powers, secures a general control over 
foreign policy. It is in the discretion of the President 
whether he will communicate current negotiations to it 
and take its advice upon them, or will say nothing till 
he lays a completed treaty before it. One or other 
course is jfrom time to time followed, according to the 
nature of the case, or the degree of friendliness exist- 
ing between the President and the majority of the 
Senate. But in general, the President's best policy 
is to keep the leaders of the senatorial majority, 



I40 THE NATIONAL GOVERNMENT parti 

and in particular the committee on Foreign Relations, 
informed of the progress of any pending negotiation. 
He thus feels the pulse of the Senate, and foresees 
what kind of arrangement he can induce it to sanc- 
tion, while at the same time a good understand- 
ing between himself and his coadjutors is promoted. 
It is well worth his while to keep the Senate in good 
humour, for, like other assemblies, it has a collective 
self-esteem which makes it seek to gain all the informa- 
tion and power it can draw in. The right of going 
into secret session enables the whole Senate to 
consider despatches communicated by the President ; 
and the more important ones, having first been sub- 
mitted to the Foreign Relations committee, are thus 
occasionally discussed without the disadvantage of 
publicity. Of course no momentous secret can be long 
kept, even by the committee, according to the proverb 
in the Elder Edda — " Tell one man thy secret, but not 
two ; if three know, the world knows.'' 

This control of foreign policy by the Senate goes 
far to meet that terrible difficulty which a democracy, 
or indeed any free government, finds in dealing with 
foreign Powers. If every step to be taken must be 
previously submitted to the governing assembly, the 
nation is forced to show its whole hand, and precious 
opportunities of winning an ally or striking a bargain 
may be lost. If on the other hand the executive is 
permitted to conduct negotiations in secret, there is 
always the risk, either that the governing assembly 
may disavow what has been done, a risk which makes 
foreign states legitimately suspicious and unwilling to 
negotiate, or that the nation may have to ratify, be- 
cause it feels bound in honour by the act of its executive 
agents, arrangements which its judgment condemns. 



CHAP. XI SENATE: EXECUTIVE AND JUDICIAL BODY 141 

The frequent participation of the Senate in negotiations 
diminishes these difficulties, because it apprises the 
executive of what the judgment of the ratifying body 
is likely to be, and it commits that body by advance. 
The necessity of ratification by the Senate in order to 
give effect to a treaty, enables the country to retire 
from a doubtful bargain, though in a way which other 
Powers find disagreeable, as England did when the 
Senate rejected the Eeverdy Johnson treaty of 1869. 
European statesmen may ask what becomes under such 
a system of the boldness and promptitude so often 
needed to effect a successful coup in foreign policy, or 
how a consistent attitude can be maintained if there is 
in the chairman of the Foreign Kelations committee a 
sort of second foreign secretary. The answer is that 
America is not Europe. The problems which the Foreign 
Office of the United States has to deal with are far 
fewer and usually far simpler than those of the Old 
World. The republic keeps consistently to her own 
sid^f the Atlantic ; nor is it the least of the merits of 
the ^^tepa of senatorial control that it has tended, by 
discouraging the executive from schemes which may 
prove resultless, to diminish the taste for foreign enter- 
prises, and to save the country from being entangled 
with alliances, protectorates, responsibilities of all sorts 
beyond its own frontiers. It is the easier for the 
Americans to practise this reserve because they need no 
alliances, standing unassailable in their own hemisphere. 
The circumstances of England, with her powerful Euro- 
pean neighbours, her Indian Empire, and her colonies 
scattered over the world, are widely different. Yet 
different as the circumstances of England are, the day 
may come when in England the question of limiting 
the at present all but unlimited discretion of the 



142 THE NATIONAL GOVERNMENT parti 

executive in foreign aflfairs will have to be dealt with ; ^ 
and the example of the American Senate will then de- 
serve and receive careful study. Yet it must be remem- 
bered that many of the most important acts done in the 
sphere of foreign relations are purely executive acts 
(as for instance, the movement of troops and ships) 
which the Senate cannot control. 

The Senate may and occasionally does amend a 
treaty, and return it amended to .the President. There 
is nothing to prevent it from proposing a draft treaty 
to him, or asking him to prepare one, but this is not 
the practice. For ratification a vote of two-thirds of 
the senators present is required. This gives great power 
to a vexatious minority, and increases the danger, 
evidenced by several incidents in "the history of the 
Union, that the Senate or a faction in it may deal with 
foreign policy in a narrow, sectional, electioneering 
spirit. When the interest of any group of States is, or 
is supposed to be, opposed to the making of a given 
treaty, that treaty may be defeated by the senators 
from those States. They tell the other senators of 
their own party that the prospects of the party in 
the district of the country whence they come will be 
improved if the treaty is rejected and a bold aggressive 
line is taken in further negotiations. Some of these 
senators, who care more for the party than for justice 
or the common interests of the country, rally to the cr}% 
and all the more gladly if their party is opposed to the 

^ Parliament may of course interfere, and sometimes does interfere ; 
but the parliamentary majority which supports the ministry of the day 
usuaUy (and probably wisely) forbears to press the Foreign OflSce for in- 
formation which it is declared to be undesirable to furnish. 

In 1886 a resolution was aU but carried in the House of Commons, 
desiring aU treaties to be laid before Parliament for its approval before 
being finally concluded. 



CHAP. XI SENATE: EXECUTIVE AND JUDICIAL BODY 143 

President in power, because in defeating the treaty they 
humiliate his administration. Supposing their party to 
command a majority, the treaty is probably rejected, 
and the settlement of the question at issue perhaps in- 
definitely postponed. It may be thought that the party 
acting so vexatiously will suffer in public esteem. This 
happens in extreme cases ; but the public are usually 
so indifferent to foreign affairs, and so little skilled in 
judging of them, that offences of the kind I have de- 
scribed may be committed with practical impunity. It 
is harder to fix responsibility on a body of senators 
than on the executive ; and whereas the executive has 
usually an interest in settling diplomatic troubles, whose 
continuance it finds annoying, the Senate has no such 
interest, but is willing to keep them open so long as 
there is a prospect of sucking some political advantage 
out of them. The habit of using foreign policy for 
electioneering purposes is not confined to America. 
We have seen it in England, we have seen it in 
France, we have seen it even in monarchical Germany. 
But in America the treaty-confirming power of the 
Senate opens a particularly easy and tempting door to 
such practices. 

The other executive function of the Senate, that of 
confirming nominations submitted by the President, has 
been discussed in the chapter on the powers of that 
officer. It is there explained how senators have used 
their right of confirmation to secure for themselves a 
huge mass of Federal patronage, and how by means of 
this right, a majority hostile to the President can thwart 
and annoy him. Quite recently a patronage dispute 
arose between President Cleveland and the Kepublican 
majority in the Senate. They required the President to 
send to the Senate along with each nomination to a 



144 THE NATIONAL GOVERNMENT parti 

place vacant by the removal of the previous holder, not 
only a statement of reasons for the removal, but all the 
papers in the possession of the executive relating to the 
matter. The President seems to have been willing to 
state his reasons, while denying the legal right of the 
Senate to require them, but he refused to transmit such 
documents as he deemed confidential. The Senate com- 
plained and passed resolutions, but had of course no 
power to compel the President's compliance. It was 
suggested by some senators that the true remedy for 
improper removals from partisan motives would be that 
the Senate should discuss nominations publicly, instead 
of, as now, in secret executive session. This would be 
the best way of putting the President in the wrong, if 
he made bad nominations, and of putting the Senate in 
the right if it refused to confirm nominations where no 
adequate ground for the removal of the prior incumbent 
had been shown. Public discussion certainly seems the 
plan most conformable to a democratic government ; 
and a European observer is surprised that American 
opinion allows such important business to be transacted 
with closed doors. 

Does the control of the Senate operate to prevent 
abuses of patronage by the President ? To some extent 
it does, yet less completely than could be wished. 
When the majority belongs to the same party as the 
President, appointments are usually arranged, or to use 
a familiar expression, " squared," between them, with a 
view primarily to party interests. When the majority 
is opposed to the President, they are tempted to agree 
to his worst appointments, because such appointments 
discredit him and his party with the country, and be- 
come a theme of hostile comment in the next election- 
eering campaign. As the initiative is his, it is the 



CHAP. XI SENATE: EXECUTIVE AND JUDICIAL BODY 145 

nominating President, and not the confirming Senate, 
whom public opinion will condemn. These things being 
so, it may be doubted whether this executive function 
of the Senate is now a valuable part of the Constitution. 
It was designed to prevent the President from making 
himself a tyrant by filling the great oflSces with his 
accomplices or tools. That danger has passed away, if 
it ever existed ; and Congress has other means of muzz- 
ling an ambitious chief magistrate. The more fully 
responsibility for appointments can be concentrated 
upon him, and the fewer the secret influences to which 
he is exposed, the better will his appointments be. On 
the other hand, it must be admitted that the participa- 
tion of the Senate causes in practice less ttction and 
delay than might have been expected fi:om a dual 
control. The appointments to the cabinet offices are 
confirmed as a matter of course. Those of diplomatic 
officers are seldom rejected. " Little tiffs " are fi-equent 
when the senatorial majority is in opposition to the exe- 
cutive, but the machinery, if it does not work smoothly, 
works well enough to carry on the ordinary business 
of the country. 

The judicial function of the Senate is to sit as a 
High Court for the trial of persons impeached by the 
House of Kepresentatives. The chief justice of the 
United States presides, and a vote of two-thirds of the 
senators voting is needed for a conviction. Of the 
process, as affecting the President, I have spoken in 
Chapter V. It is applicable to other officials, including 
Federal judges. Besides President Johnson, six persons 
in all have been impeached, viz. : — 

Four Federal judges, of whom two were acquitted, 
and two convicted, one for habitual drunkenness, and 
the other for having joined the Secessionists of 1861. 

VOL. I L 



146 THE NATIONAL GOVERNMENT parti 

We shall see presently that impeachment is the only 
means by which a Federal judge can be got rid of. 

One senator, who was acquitted for want of jurisdic- 
tion, the Senate deciding that a senatorship is not a 
"civil office" within the meaning of Art. iii. § 4 of 
the Constitution. 

One minister, a secretary of war, who resigned be- 
fore the impeachment was actually preferred, and escaped 
on the ground that being a private person he was not 
impeachable. 

Kare as this method of proceeding is, it could not 
be dispensed with, and it is better that the Senate 
should try cases in which a political element is usually 
present, than that the impartiality of the Supreme 
court should be exposed to the criticism it would have 
to bear, did political questions come before it. Most 
senators are or have been lawyers of eminence, so that 
so far as legal knowledge goes they are competent mem- 
bers of a court. 



CHAPTER XII 

THE SENATE : ITS WORKING AND INFLUENCE 

The Americans consider the Senate one of the suc- 
cesses of their Constitution, a worthy monument of the 
wisdom and foresight of its founders. Foreign observers 
have repeated this praise, and have perhaps, in their 
less perfect knowledge, sounded it even more loudly. 

The aims with which the Senate was created, the 
purposes it was to fulfil, are set forth, under the form 
of answers to objections, in five letters (lxi.-lxv.), all 
by Alexander Hamilton, in the Federalist} These aims 
were the five following : — 

To conciliate the spirit of independence in the 
several States, by giving each, however small, equal 
representation with every other, however large, in one 
branch of the national government. 

To create a council qualified, by its moderate size 
and the experience of its members, to advise and check 
the President in the exercise of his powers of appoint- 
ing to office and concluding treaties. 

To restrain the impetuosity and fickleness of the 
popular House, and so guard against the effects of gusts 
of passion or sudden changes of opinion in the people. 

^ See also Hamilton's speeches in the New York Convention. — Elliot's 
Debates, ii. p. 301 sqq. 



148 THE NATIONAL GOVERNMENT parti 

To provide a body of men whose greater experience, 
longer term of membersliip, and comparative independ- 
ence of popular election, would make them an element of 
stability in the government of the nation, enabling it to 
maintain its character in the eyes of foreign States, and 
to preserve a continuity of policy at home and abroad. 

To establish a Court proper for the trial of impeach- 
ments, a remedy deemed necessary to prevent abuse of 
power by the executive. 

All of these five objects have been more or less 
perfectly attained ; and the Senate has acquired a 
position in the government of the nation which Hamil- 
ton scarcely ventured to hope for. In 1788 he wrote : 
"Against the force of the immediate representatives 
of the people nothing will be able to maintain even the 
constitutional authority of the Senate, but such a display 
of enlightened policy, and attachment to the public 
good, as will divide with the House of Kepresentatives 
the affections and support of the entire body of the 
people themselves." 

It may be doubted whether the Senate has excelled 
the House in attachment to the public good ; but it has 
certainly shown greater capacity for managing the public 
business, and has won the respect, if not the affections, 
of the people, by its sustained intellectual power. 

The Federalist did not think it necessary to state, 
nor have Americans generally realized, that this master- 
piece of the Constitution-makers was in fact a happy 
accident. No one in the Convention of 1787 set out 
with the idea of such a Senate as ultimately emerged 
from their deliberations. It grew up under the hands 
of the Convention, as the result of the necessity for 
reconciling the conflicting demands of the large 
and the small States. The concession of equal repre- 



CHAP. XII SENATE: WORKING AND INFLUENCE 149 

sentation in the Senate induced the small States to 
accept the principle of representation according to popu- 
lation in the House of Kepresentatives ; and a series of 
compromises between the advocates of popular power, 
as embodied in the House, and those of monarchical 
power, as embodied in the President, led to the allot- 
ment of attributes and functions which have made the 
Senate what it is. When the work which they had 
almost unconsciously perfected was finished, the leaders 
of the Convention perceived its excellence, and defended 
it by arguments in/which we feel the note of sincere 
conviction. Yet th^ conception they formed of it differed 
from the reality which has been evolved. Although they 
had created it as a branch of the legislature, they 
thought of it as being first and foremost a body with 
executive functions. And this, at first, it was. The 
traditions of the old Congress of the Confederation, in 
which the delegates of the States voted by States, the 
still earlier traditions of the executive councils, which 
advised the governors of the colonies while still subject 
to the British Crown, clung about the Senate and affected 
the minds of the senators.^ It was a small body, 
originally of twenty-six, even in 1810 of thirty-four 
members only, a body not ill fitted for executive work. 
Its members, regarding themselves as a sort of congress 
of ambassadors fi-om their respective States, were accus- 
tomed to refer for advice and instructions each to his 
State legislature. So late as 1828, a senator after 
arguing strongly against a measure declared that he 
would nevertheless vote for it, because he believed his 
State to be in its favour. For the first five years 
of its existence, the Senate sat with closed doors, 

^ See upon this point the acute remarks of M. Boutmy, Gtvdes de 
DroU Constitutiond (Paris 1886), p. 118 sqq. 



ISO THE NATIONAL GOVERNMENT parti 

occupying itself chiefly with the confidential business of 
appointments and treaties, and conferring in private 
with the ministers of the President. Not till 1816 did 
it create, in imitation of the House, those Standing 
Committees which the experience of the House had 
shown to be, in bodies where the executive ministers do 
not sit, the necessary organs for dealing with legislative 
business. Its present character as a legislative body, 
not less active and powerful than the other branch 
of Congress, is the result of a long process of 
evolution, a process possible (as will be more fully 
explained hereafter) even under the rigid Constitution 
of the United States, because the language of the 
sections which define the competence of the Senate 
is very wide and general. But in gaining legislative 
authority, it has not lost its executive functions, 
although those which relate to treaties are largely 
exercised on the advice of the standing Committee on 
Foreign Kelations. And as respects these executive 
functions it stands alone in the world. No European 
state, no British colony, entrusts to an elective assembly 
that direct participation in executive business which 
the Senate enjoys. 

What is meant by saying that the Senate has proved 
a success ? 

It has succeeded by efiecting that chief object of the 
Fathers of the Constitution, the creation of a centre of 
gravity in the government, an authority able to correct 
and check on the one hand the " democratic reckless- 
ness" of the House, on the other the "monarchical 
ambition " of the President. Placed between the two, 
it is necessarily the rival and generally the opponent of 
both. The House can accomplish nothing without its 
concurrence. The President can be checkmated by its 



CHAP. XII SENA TE : WORKING A ND I NFL UENCE 1 5 1 

„ I 

resistance. These are, so to speak, negative or pro- 
hibitive successes. It has achieved less in the way of 
positive work, whether of initiating good legislation or 
of improving the measures which the House sends it. 
But the whole scheme of the American Constitution 
tends to put stability above activity, to sacrifice the 
productive energies of the bodies it creates to their 
power of resisting changes in the general fabric of the 
government. The Senate has succeeded in making 
itself eminent and respected. It has drawn the best 
talent of the nation, so far as that talent flows to 
politics, into its body, has established an intellectual 
supremacy, has furnished a vantage ground from which 
men of ability may speak with authority to their fellow- 
citizens. 

To what causes are these successes to be ascribed ? 
Hamilton assumed that the Senate would be weaker 
than the House of Kepresentatives, because it would 
not so directly spring from, speak for, be looked to by, 
the people. This was a natural view, especially as the 
analogy between the position of the Senate towards the 
House of Kepresentatives in America, and that of the 
House of Lords towards the House of Commons in 
Great Britain, an analogy constantly present to the 
men of 1787, seemed to suggest that the larger and 
more popular chamber must* dwarf and overpower the 
smaller one. But the Senate has proved no less strong, 
and morally more influential, than its sister House of 
Congress. The analogy was unsound, because the 
British House of Lords is hereditary and the Senate 
representative. In these days no hereditary assembly, 
be its members ever so able, ever so wealthy, ever so 
socially influential, can speak with the authority which 
belongs to those who speak for the people. Mirabeau's 



152 THE NATIONAL GOVERNMENT parti 

famous words in the Salle des Menus at Versailles, 
"We are here by the will of the people, and nothing 
but bayonets shall send us hence," express the whole 
current of modern feeling; though it is only to-day 
that the belated political philosophers of England are 
awakening to perceive that the fault of their House of 
Lords is not that it is too strong, but that it is too 
weak, and that no assembly can now be strong unless it 
is representative. Now the Senate, albeit not chosen by 
direct popular election, does represent the people ; and 
what it may lose through not standing in immediate 
contact with the masses, it gains in representing such 
ancient and powerful commonwealths as the States. A 
senator from New York or Pennsylvania speaks for, and 
is responsible to, millions of men. No wonder he has 
an authority beyond that of the long-descended nobles 
of Prussia, or the peers of England whose possessions 
stretch over whole counties. 

This is the first reason for the strength of the 
Senate, as compared with the upper chambers of other 
countries. It is built on a wide and solid foundation of 
choice by the people and consequent responsibility to 
them. A second cause is to be found in its small size. 
A small body educates its members better than a large 
one, because each member is of more consequence, has 
more to do, sooner masters the business not only of his 
committee but of the whole body, feels a livelier sense 
of the significance of his own action in bringing about 
collective action. There is less disposition to abuse the 
freedom of debate. Party spirit may be as intense as 
in great assemblies, yet it is mitigated by the disposition 
to keep on friendly terms with those whom, however 
much you may dislike them, you have constantly to 
meet, and by the feeling of a common interest in 



CHAP. XII SENATE: WORKING AND INFLUENCE 153 

sustaining the authority of the body. A senator 
soon gets to know each of his colleagues — they were 
originally only twenty-five — and what each of them 
thinks of him ; he becomes sensitive to their opinion ; 
he is less inclined to pose before them, however he 
may pose before the public. Thus the Senate formed, 
in its childhood, better habits in discussing and trans- 
acting its business than could have been looked for in 
a large assembly; and these habits its maturer age 
retains. Its comparative permanence has also worked 
for good. Six years, which seem a short term in 
Europe,^ are in America a long term when compared with 
the two years for which the House of Kepresentatives 
and the Assemblies of nearly all the States are elected, 
long also when compared with the swiftness of change 
in American politics. A senator has the opportunity 
of thoroughly learning his work, and of proving 
that he has learnt it. He becomes slightly more ■ 
independent of his constituency ,2 which in America, 
where politicians catch at every passing breeze of 
opinion, is a clear gain. He is relieved a little, though 
only a little, of the duty of going on the stump in 
his State, and maintaining his influence among local 
politicians there. 

The smallness and the permanence of the Senate 
have however another important influence on its charac- 
ter. They contribute to one main cause of its success, 
the superior intellectual quality of its members. 
Every European who has described it, has dwelt upon 

^ Seven years are the fuU legal, and four to five years in practice the 
average, duration of a British House of Commons. 

2 A few years ago, for instance, Mr. Justice Lamar, then senator for 
Mississippi, having incurred the displeasure of some leading local politicians, 
took the field in his State, and succeeded in convincing the people that 
he was rights and in securing his re-election. 



1 54 THE NATIONAL GOVERNMENT parti 

the capacity of those who compose it, and most have 
followed De Tocqueville in attributing this capacity to 
the method of double election. The choice of senators 
by the State legislatures is supposed to have proved a 
better means than direct choice by the people of 
discovering and selecting the fittest men. I have 
already remarked that practically the election of senators 
has become a popular election, the function of the 
legislatures being now little more than to register and 
formally complete a choice already made by the party 
managers, and perhaps ratified in the party convention. 
But apart altogether from this recent development, and 
reviewing the whole hundred years' history of the 
Senate, the true explanation of its intellectual capacity 
is to be found in the superior attraction which it has 
for the ablest and most ambitious men. A senator has 
more power than a member of the House, more dignity, 
a longer term of service, a more independent posi- 
tion. Hence every Federal politician aims at a senator- 
ship, and looks on the place of representative as a 
stepping-stone to what is in this sense an Upper 
House, that it is the House to which representatives 
seek to mount. It is no more surprising that the average 
capacity of the Senate should surpass that of the House, 
than that the average cabinet minister of Europe should 
be abler than the average member of the legislature. 

What is more, the Senate so trains its members as 
to improve their political eflficiency. Several years of 
service in a small body, with important and delicate 
executive work, are worth twice as many years of 
jostling in the crowd of representatives at the other 
end of the Capitol. If the Senate does not find the 
man who enters it already superior to the average of 
Federal politicians, it makes him superior. But natural 



CHAP. XII SENATE: WORKING AND INFLUENCE 155 

selection, as has been said, usually seats upon its 
benches the best ability of the country that has flowed 
into political life, and would do so no less were the 
election in form a direct one by the people at the polls. 

Most of the leading men of the last sixty years 
have sat in the Senate, and in it were delivered most of 
the famous speeches which illumine, though too rarely, 
the wearisome debates over State rights and slavery 
from 1825 till 1860. One of these debates, that in the 
beginning of 1830, which called forth Daniel Webster's 
majestic defence of the Constitution, was long called 
par excellence "the great debate in the Senate."^ 

Of the seventy-six senators who sat in the forty- 
eighth Congress (in 1884) 31 had sat in the other 
House of Congress, and 49 had served in State legisla- 
tures.^ In the fiftieth Congress (1888) 29 had sat in 
the House of Kepresentatives, and 49 in State legisla- 
tures. Many had been judges or State governors; 
many had sat in State conventions. Nearly all had 
held some public function. A man must have had 
considerable experience of affairs, and of human 
nature in its less engaging aspects, before he enters 
this august conclave. But experience is not all gain. 
Practice makes perfect in evil-doing no less than in 
well-doing. The habits of local politics and of work 
in the House of Kepresentatives by which the senators 
have been trained, while they develop shrewdness and 
quickness in all characters, tell injuriously on characters 

^ In those days the Senate sat in that smaUer chamber which is now 
occupied by the Supreme Federal Court. 

2 I cannot be sure of the absolute actual accuracy of these figures, which 
I have compiled from the Congressional Directory, because some senators do 
not set forth the whole of their political career. It is worth remarking 
that the proportion of senators who have previously been members of the 
Bouse of Representatives is larger among the senators from the older 
Slates than it is in the south and west. 



IS6 THE NATIONAL GOVERNMENT parti 

of the meaner sort, leaving men's views narrow, and 
giving them a taste as well as a talent for intrigue. 

The chamber in which the Senate meets is semi- 
circular in form, the Vice-President of the United States, 
who acts as presiding officer, having his chair on a 
marble dais, slightly raised, in the centre of the chord, 
with the senators all turned towards him as they sit in 
concentric semicircles, each in a morocco leather covered 
arm-chair, with a desk in front of it. The floor is about 
as large as the whole superficial area of the British 
House of Commons, but as there are great galleries on 
all four sides, running back over the lobbies, the upper 
part of the chamber and its total air-space much exceeds 
that of the English house. One of these galleries is 
appropriated to the President of the United States ; 
the others to ladies, the press, and the public. Be- 
hind the senatorial chairs and desks there is an 
open space into which strangers can be brought by 
the senators, who sit and talk on the sofas there placed. 
Members of foreign legislatures are allowed access to 
this outer "floor of the Senate."^ There is, especially 
when the galleries are empty, a slight echo in the room, 
which obliges most speakers to strain their voices. Two 
or three pictures on the walls somewhat relieve the 
cold tone of the chamber, with its marble platfottn 
and sides unpierced by windows, for the light enters 
through glass compartments in the ceiling. 

A senator always addresses the Chair "Mr. Presi- 
dent," and refers to other senators by their States, 
"The senator from Ohio," "The senator from Tennessee." 
When two senators rise at the same moment, the Chair 

^ A graceful courtesy has extended the privilege to the distinguished 
historian of the United States, Mr. George Bancroft, who still pursues in 
extreme old age his patriotic labours. 



CHAP. XII SENATE: WORKING AND INFLUENCE 157 

calls on one, indicating him by his State, " The senator 
from Minnesota has the floor." ^ Senators of the 
Democratic party sit, and apparently always have sat, 
on the right of the chair, Kepublican senators on the 
left ; but, as already explained, the parties do not face 
one another. The impression which the place makes 
on a visitor is one of business-like gravity, a gravity 
which though plain is dignified. It has the air not 
so much of a popular assembly as of a diplomatic 
congress. The English House of Lords, with its fretted 
roof and windows rich with the figures of departed 
kings, its majestic throne, its Lord Chancellor in his 
wig on the woolsack, its benches of lawn -sleeved 
bishops, its bar where the Commons throng at a 
great debate, is not only more gorgeous and pic- 
turesque in externals, but appeals far more powerfully 
to the historical imagination, for it seems to carry 
the middle ages down into the modern world. The 
Senate is modern, severe, and practical. So, too, few 
debates in the Senate rise to the level of the better 
debates in the English chamber. But the Senate 
seldom wears that air of listless vacuity and superannu- 
ated indolence which the House of Lords presents on all 
but a few nights of every session. The faces are keen 
and forcible, as of men who have learned to know the 
world, and have much to do in it; the place seems 
consecrated to great affairs. 

As might be expected from the small number of 

1 A late President of the Senate was in the habit of distinguishing 
the two senators from the State of Arkansas, by calling on one as the 
senator for "Arkansas" (pronounced as written, with accent on the 
penult), and the other as the Senator for " Arkansaw," with accent on 
the last syllable. As Europeans often ask which is the correct pronun- 
ciation, I may say that both are in common use. But the legislature of 
Arkansas has lately by a "joint resolution" declared "Arkansaw" to be 
right. 



158 THE NATIONAL GOVERNMENT parti 

the audience, as well as from its character, discussions in 
the Senate are apt to be sensible and practical. Speeches 
are shorter and less fervid than those made in the House 
of Eepresentatives, for the larger an assembly the more 
prone is it to declamation. The least useful debates are 
those on show-days, when a series of set discourses are 
delivered on some prominent question, because no one 
expects such discourses to have any persuasive eflfect. 
The question at issue is sure to have been already 
settled, either in a committee or in a " caucus " of the 
party which commands the majority, so that these long 
and sonorous harangues are mere rhetorical thunder 
addressed to the nation outside. The speakers, more- 
over, on such field days, seldom reply to the argu- 
ments of those who have preceded them, as men do in 
the English Parliament. Each senator brings down 
and fires off in the air, a carefully-prepared oration, 
which may have little bearing on what has gone before. 
In fact the speeches are made not to convince the 
assembly, for that no one dreams of doing, but to keep 
a man's opinions before the public and sustain his fame.^ 
The Senate now contains many men of great wealth. 
Some, an increasing number, are senators because they 
are rich ; a few are rich because they are senators, while 
in the remaining cases the same talents which have 
won success in law or commerce have brought their 
possessor to the top in politics also. The great majority 
are or have been lawyers ; some regularly practise 
before the Supreme Court. Complaints are occasionally 
levelled against the aristocratic tendencies which wealth 
is supposed to have bred, and sarcastic references are 
made to the sumptuous residences which senators have 

^ One is told in Washington that it is at present thought ** bad form " 
for a senator to listen to a set speech ; it implies that he is a freshman. 



CHAP. XII SENATE: WORKING AND INFLUENCE 159 

built on the new avenues of Washington. While admit- 
ting that there is more sympathy for the capitalist 
class among these rich men than there would be in a 
Senate of poor men, I must add that the Senate is 
far from being a class body like the upper houses of 
England or Prussia or Spain or Denmark. It is sub- 
stantially representative, by its composition as well as by 
legal delegation, of all parts of American society ; it is far 
too dependent, and far too sensible that it is dependent, 
upon public opinion, to dream of legislating in the interest 
of the rich. The senators, however, indulge some 
social pretensions. They are the nearest approach to an 
ojfficial aristocracy that has yet been seen in America. 
They and their wives are allowed precedence at private 
entertainments, as well as on public occasions, over 
members of the House, and of course over private 
citizens. Jefferson might turn in his grave if he knew 
of such an attempt to introduce European distinctions 
of rank into his democracy ; yet as the office is tempor- 
ary, and the rank vanishes with the office, these preten- 
sions are harmless ; it is only the universal social 
equality of the country that makes them noteworthy. 
Apart from such petty advantages, the position of a 
senator, who can count on re-election, is the most desir- 
able in the political world of America. It gives as much 
power and influence as a man need desire. It secures 
for him the ear of the public. It is more permanent 
than the presidency or any great ministerial office, 
requires less labour, involves less vexation, though 
still great vexation, by importunate office-seekers. 

European writers on America have been too much 
inclined to idealize the Senate. Admiring its structure 
and ftinction, they have assumed that the actors must 
be worthy of their parts. They have been encouraged 



i6o THE NATIONAL GOVERNMENT parti 

in this tendency by the language of many Americans. 
As the Eomans were never tired of repeating that 
the ambassador of Pyrrhus had called the Eoman 
senate an assembly of kings, so Americans of refine- 
ment, who are ashamed of the turbulent House of 
Representatives, are wont to talk of the Senate as a sort 
of Olympian dwelling-place of statesmen and sages. It 
is nothing of the kind. It is a company of shrewd 
and vigorous men who have fought their way to the 
front by the ordinary methods of American politics, 
and on many of v^hom the battle has left its stains. 
There are abundant opportunities for intrigue in the 
Senate, because its most important business is done in 
the secrecy of committer rooms or of executive session ; 
and many senators are ijitriguers. There are oppor- 
tunities for misusing senatorial powers. Scandals have 
sometimes arisen from the practice of employing as 
counsel before the Supreme Court, senators whose 
influence has contributed to the appointment or con- 
firmation of the judges.^ There are opportunities for 
corruption and blackmailing, of which unscrupulous 
men are well known to take advantage. Such men 
are fortunately few; but considering how demoral- 
ized are the legislatures of several southern and 
western States, their presence must be looked for; 
and the rest of the Senate, however it may blush 
for them, is obliged to work with them and to treat 
them as equals.^ The contagion of political vice is 

^ In the session of 1886, an Act was passed forbidding members of 
either House of Congress to appear in the Federal courts as counsel for 
any railroad company or other corporation which might, in respect of its 
having received land grants, be affected by Federal legislation. The Act 
originated in the Senate, which desen'es in this instance the credit of 
seeking to cure its own faults, and remove temptation from the path of 
its weaker members. 

2 Americans now frequently accuse the Senate of timidity, and ascribe 



CHAP. XII SENATE: WORKING AND INFLUENCE i6i 

nowhere so swiftly potent as in legislative bodies, 
because you cannot taboo a man who has got a vote. 
You may loathe him personally, but he is the people's 
choice. He has a right to share in the government of 
the country ; you are grateful to him when he saves you 
on a critical division ; you discover that " he is not such 
a bad fellow when one knows him" ; people remark that 
he gives good dinners, or has an agreeable wife ; and so 
it goes on till falsehood and knavery are covered under 
the cloak of party loyalty. 

As respects ability, the Senate cajmot be profitably 
compared with the English House of Lords, because that 
assembly consists of some twenty eminent and as many 
ordinary men attending regularly, with a multitude of 
undistinguished persons who, though members, are 
only occasional visitors, and take no real share in the 
deliberations. Setting the Senate beside the House 
of Commons, one may say that the average natural 
capacity of its seventy - six members is not above 
that of the seventy -six best men in the English 
House. There is more variety of talent in the latter, 
and a greater breadth of culture. On the other hand, 
the Senate excels in legal knowledge as well as in 
practical shrewdness. The House of Commons contains 
more men who could give a good address on a literary 

this fault to the fact that many of its members, being persons of great 
wealth but no great independence, are nervously alive to the fear of 
being thought deficient in popular sympathies. Recently when a proposal 
was made to bring the Federal army up to its nominal strength, 25,000 
men, no extreme figure, the threat of one member that the working 
classes would think the army was being increased in order to be used by 
capital against labour, is said to have caused so much alarm that the plan 
was hastily dropped. So far as a stranger can judge, there is certainly 
less respect for the Senate collectively, and for most of the senators indi- 
vidually, now than there was eighteen years ago, though, of course, there 
are among its members men of an ability and character which would 
do honour to any assembly. 

VOL. I M 



i62 THE NATIONAL GOVERNMENT parti 

or historical subject, the Senate more who could either 
deliver a rousing popular harangue or manage the busi- 
ness of a great trading company, these being the forms 
of capacity commonest among congressional politicians. 
The fairest judgment I know on the Senate's merits is 
contained in the following extract from an acute American 
writer, who says (writing in 1885) : 

" The Senate is just what the mode of its election 
and the conditions of public life in this country make 
it. Its members are chosen from the ranks of active 
politicians, in accordance with a law of natural selection 
to which the State legislatures are commonly obedient ; 
and it is probable that it contains, consequently, the best 
men that our system calls into politics. If these best 
men are not good, it is because our system of govern- 
ment fails to attract better men by its prizes, not because 
the country affords or could afford no finer material. 
The Senate is in fact, of course, nothing more than a 
part, though a considerable part, of the public service ; 
and if the general conditions of that service be such as 
to starve statesmen and foster demagogues, the Senate 
itself will be full of the latter kind, simply because there 
are no others available. There cannot be a separate 
breed of public men reared specially for the Senate. 
It must be recruited from the lower branches of the 
representative system, of which it is only the top- 
most part. No stream can be purer than its sources. 
The Senate can have in it no better men than the best 
men of the House of Representatives ; and if the 
House of Representatives attracts to itself only in- 
ferior talent, the Senate must put up with the same 
sort. Thus the Senate, though it may not be as 
good as could be wished, is as good as it can be 
under the circumstances. It contains the most perfect 



CHAP. XII SENATE: WORKING AND INFLUENCE 163 

product of our politics, whatever that product may 
be." ^ 

The place which the Senate holds in the constitutional 
system of America cannot be fully appreciated till the 
remaining parts of that system have been described. This 
much, however, may be claimed for it, that it has been 
and is, on the whole, a steadying and moderating power. 
One cannot say in the language of European politics that 
it has represented aristocratic principles, or anti-popular 
principles, or even conservative principles. Each of the 
great historic parties has in turn commanded a majority 
in it, and the difference between their strength has 
during the last decade been but slight. On none of 
the great issues that have divided the nation has the 
Senate been, for any long period, decidedly opposed 
to the other House of Congress. It showed no 
more capacity than the House for grappling with the 
problems of slavery extension. It was scarcely less 
ready than the House to strain the Constitution by sup- 
porting Lincoln in the exercise of the so-called war 
powers, or subsequently by cutting down presidential 
authority in the struggle between Congress and Andrew 
Johnson. All the fluctuations of public opinion tell 
upon it, nor does it venture, any more than the House, 
to confront a popular impulse, because it is, equally 
with the House, subject to the control of the great 
parties, which seek to use while they obey the dominant 
sentiment of the hour. 

But the fluctuations of opinion tell on it less ener- 
getically than on the House of Representatives. They 
reach it slowly and gradually, owing to the system which 
renews it by one-third every second year, so that it 
sometimes happens that before the tide has risen to the 

^ Woodrow Wilson, Congressional Government, pp. 194, 195. 



1 64 THE NATIONAL GOVERNMENT parti 

top of the flood in the Senate it has abeady begun to 
ebb in the country. The Senate has been a stouter 
bulwark against agitation, not merely because a majority 
of the senators have always four years of membership 
before them, within which period public feeling may 
change, but also because the senators have been indi- 
vidually stronger men than the representatives. They 
are less democratic, not in opinion, but in temper, 
because they have more self-confidence, because they 
have more to lose, because experience has taught them 
how fleeting a thing popular sentiment is, and how use- 
ful a thing continuity in policy is. The Senate has 
therefore usually kept its head better than the House of 
Representatives. It has expressed more adequately the 
judgment, as contrasted with the emotion, of the nation. 
In this sense it does constitute a " check and balance '' 
in the Federal government. Of the three great functions 
which the Fathers of the Constitution meant it to perform, 
the first, that of securing the rights of the smaller States, 
is- no longer important, because the extent of State 
rights has been now well settled ; while the second, that 
of advising or controlling the Executive in appointments 
as well as in treaties, has given rise to evils almost com- 
mensurate with its benefits. But the third duty is still 
well discharged, for " the propensity of a single and 
numerous assembly to yield to the impulse of sudden 
and violent passions" is restrained. 



CHAPTEE XIII 

THE HOUSE OF REPRESENTATIVES 

The House of Eepresentatives, usually called for short- 
ness the House, represents the nation on the basis of 
population, as the Senate represents the States. 

But even in the composition of the House the States 
play an important part. The Constitution provides^ 
that '' representatives and direct taxes shall be appor- 
tioned among the several States according to their 
respective numbers," and under this provision Congress 
allots so many members of the House to each State in 
proportion to its population at the last preceding 
decennial census, leaving the State to determine the 
districts within its own area for and by which the mem- 
bers shall be chosen. These districts are now equal or 
nearly equal in size ; but in laying them out there is 
ample scope for the process called '' gerrymandering," ^ 

^ Constitution, Art. i. § 2, par. 3 ; cf. Amendment xiv. § 2. 

'^ So caUed from Elbridge (Jerry, a leading Democratic politician in 
Massachusetts (a member of the Constitutional Convention of 1787, and 
in 1812 elected Vice-President of the United States), who when Massa- 
chusetts was being re-districted contrived a scheme which gave one of the 
districts a shape like that of a lizard. A noted artist entering the room 
of an editor who had a map of the new districts hanging on the wall over 
his desk observed, " Why, this district looks like a salamander," and put 
in the claws and eyes of the creature with his pencil. ** Say rather a 
Gerrymander," replied the editor ; and the name stuck. The aim of gerry- 
mandering, of course, is so to lay out the one-membered districts as to 



1 66 THE NATIONAL GOVERNMENT parti 

■ ■ .■■■■ 1 ^ . ■ ■■■■y ■ ■—■.■--■■I 

which the dominant party in a State rarely fails to apply 
for its own advantage. Where a State legislature has 
failed to redistribute the State into congressional dis- 
tricts, after the State has received an increase of repre- 
sentatives, the additional member or members are elected 
by the voters of the whole State on a general ticket, and 
are called "representatives at large." Very recently 
one State (Maine) elected all its representatives on this 
plan, while another (Kansas) elected three by districts 
and four by general ticket. Each district, of course, lies 
wholly within the limits of one State. When a seat 
becomes vacant the governor of the State issues a writ 
for a new election, and when a member desires to resign 
his seat he does so by letter to the governor. 

The original House which met in 1789 contained only 
sixty-five members, the idea being that there should be 
one member for every 30,000 persons. As population 
grew and new States were added, the number of 
members was increased. Originally Congress fixed the 
ratio of members to population, and the House accord- 
ingly grew ; but latterly, fearing a too rapid increase, 
it has fixed the number of members with no regard for 
any precise ratio of members to population. At present 
the total number of representatives is 325, being, 
according to the census of 1880, one member to 154,325 
souls. Four States, Colorado, Delaware, Nevada, and 

secure in the greatest possible number of tliem a majority for the party 
which conducts the operation. This is done sometimes by throwing the 
greatest possible number of hostile voters into a district which is anyhow 
certain to be hostile, sometimes by adding to a district where parties 
are equaUy divided some place in which the majority of friendly 
voters is sufficient to turn the scale. There is a district in Mississippi 
(the so-called Shoe String district) 600 miles long by 40 broad, and 
another in Pennsylvania resembling a dumb-bell. South Carolina fur- 
nishes some beautiful recent examples. And in Missouri a district has been 
contrived longer, if measured along its windings, than the State itself, into 
which as large a number as possible of the negro voters have been thrown. 



CHAP. XIII THE HOUSE OF REPRESENTATIVES 167 

Oregon, have only one representative each ; four others 
have two each ; while New York has thirty-four, and 
Pennsylvania twenty-eight. Besides these full members 
there are also eight Territorial delegates, one from each 
of the Territories, regions in the West enjoying a species 
of self-government, but not yet formed into States. 
These delegates sit and speak, but have no right to vote, 
being unrecognized by the Constitution. They are, in 
fact, merely persons whom the House under a statute 
admits to its floor and permits to address it. 

The electoral franchise on which the House is elected 
is for each State the same as that by which the members 
of the more numerous branch of the State legislature 
are chosen. Originally electoral franchises varied very 
much in different States : now a suffrage practically all 
but universal prevails everywhere. A State, however, 
has a right of limiting the suffrage as it pleases, and 
many States do exclude persons convicted of crime, 
paupers, illiterates, etc. By the fifteenth amendment to 
the Constitution (passed in 1870) "the right of citizens of 
the United States to vote shall not be denied or abridged 
by any State on account of race, colour, or previous con- 
dition of servitude," while by the fourteenth amendment 
(passed in 1868) "the basis of representation in any State 
is reduced in respect of any male citizens excluded from 
the suffrage, save for participation in rebellion or other 
crimes." Each State has therefore a strong motive for 
keeping its suffrage wide, but the fact remains that the 
franchise by which the Federal legislature is chosen 
may differ vastly, and does in some points actually difffer 
in different parts of the Union. ^ 

^ Bhode Island still retains a certain small property qualification for 
electors, and in some States payment of a poll tax is made a condition to 
the exerdse of electoral rights. See chapter on State Legislatures in 
VoL II. 



i68 THE NATIONAL GOVERNMENT parti 

Members are elected for two years, and the election 
always takes place in the even years, 1884, 1886, 1888, 
and so forth. Thus the election of every second Con- 
gress coincides with that of a President ; and admirers 
of the Constitution find in this arrangement another of 
their favourite " checks," because while it gives the in- 
coming President a Congress presumably, though by no 
means necessarily, of the same political complexion as 
his .own, it enables the people within two years to ex- 
press their approval or disapproval of his conduct by 
sending up another House of Representatives which may 
support or oppose the policy he has followed. The 
House does not in the regular course of things meet 
until a year has elapsed from the time when it has been 
elected, though the President may convoke it sooner, Le, 
a House elected in November 1888 will not meet till 
December 1889, unless the President sunmions it in 
'^extraordinary session" some time after March 1889, 
when the previous House expires. This summons has 
been issued ten times only since 1789 ; and has so often 
brought ill luck to the summoning President that a sort 
of superstition against it has now grown up.^ The ques- 
tion is often mooted whether a new Congress ought not 
by law to meet within six months after its election, for 
there are inconveniences in keeping an elected House 
unorganized and Speakerless for a twelvemonth. But 
the country is not so fond of Congress as to desire more 
of it. It is a singular result of the present arrangement 
that the old House continues to sit for nearly four months 
after the members of the new House have been elected. 



^ This iU luck is supposed (says Mr. Blaine in his Twenty Years in 
Congress) to attach especially to May sessions, which reminds one of the 
superstition against May marriages mentioned by John Knox apropos of 
the marriage of Mary Queen of Scots and Damley. 



CHAP. XIII THE HOUSE OF REPRESENTATIVES 169 

The expense of an election varies greatly from dis- 
trict to district. Sometimes, especially in great cities 
where illegitimate expenditure is more frequent and 
less detectible than in rural districts, it rises to a sum 
of $10,000 (£2000) or more : sometimes it is trifling. 
No estimate of the average can be formed, be- 
cause no returns of election expenses are required 
by law. I fancy that a seat costs, as a rule, less than 
one for a county division does in England.^ A candi- 
date, unless very wealthy, is not expected to pay 
the whole expense out of his own pocket, but is 
aided often by the local contributions of his friends, 
sometimes by a subvention from the election funds 
of the party in the State. Most of the expendi- 
ture is legitimate, that is to say, it goes in paying 
for meetings, in printing, in advertisements, in 
agency. All the oflficial expenses, such as for clerks, 
polling booths, etc., are paid by the public. Bribery is 
not rare in the urban districts, nor in some of the 
country districts : but elections are seldom impeached 
on that ground, for the difiiculty of proof is increased 
by the circumstance that the House, which is of course 
the investigating and deciding authority, does not 
meet till a year after the election. As a member is 
elected for two years only, and the investigation would 
probably drag on during the whole of the first session, 
it is scarcely worth while to dispute the return for the 

^ In England the Act 46 and 47 Vict. c. 51, Schedule L, fixes the 
maximum expenditure of a candidate, exclusive of personal expenses and 
returning officer's charges, as follows : — In a borough j£380, and an addi- 
tional £30 for every complete 1000 electors above 2000. In a county 
j£710, and an additional £60 for every complete 1000 electors above 
2000. Expenses at borough elections are usually below the legal maxi- 
mum, in counties not so often. The average expenditure, all kinds of 
expense included, seems, in county constituencies, to be from £1100- 
£1200, and in boroughs from £400-£600. 



I70 THE NATIONAL GOVERNMENT parti 

sake of turning him out for the second session.^ System- 
atic treating is uncommon. Sometimes in country places 
a voter who has come from a distance to vote, expects a 
free dinner, and no one complains if he gets it. In some 
States, drinking places are closed on the election day. 

Among the , members of the House there are few- 
young men, and still fewer old men. The inmiense 
majority are between forty and sixty. Lawyers abound, 
including in that term both those who in Great Britain 
are called barristers or advocates, and those who are 
called attorneys, there being in America no distinction 
between these two branches of the profession. An 
analysis of the House in the fiftieth Congress, that 
of 1887-89, showed that two hundred and three mem- 
bers, or nearly two-thirds of the whole number, had 
been trained or had practised as lawyers. Of course 
many of these had practically dropped law as a business, 
and given themselves wholly to politics. Next in 
number come the men engaged in manufactures or com- 
merce, in agriculture, or banking, or journalism, but no 
one of these occupations counted as many as forty 
members.^ No military or naval officer, and no person 

1 That iinder these favouring conditions bribery is not common may 
be due to the great size of the congressional districts (average population 
of a district (1888) at least 160,000). Bribery sprang up in England when 
constituencies were small — it was far more rife in boroughs than in 
counties — and its disappearance of late years is probably due to the 
enormous enlargement of the constituencies as well as to the severe and 
searching provisions of the present law. At Rome, however, candidates 
used to bribe large numbers of electors ; and I have heard of city dis- 
tricts in America in which thousands of electors were believed to have 
received a pecuniary consideration. 

2 In the fiftieth Congress the number of persons stating themselves to 
be engaged in commerce was 39, in agriculture 25. In the forty-eighth 
Congress there were 205 lawyers. I take these numbers from the C<wi- 
gressional Directory, which I have carefully analyzed, but as some members 
do not state their occupations, the analysis is not quite complete, and there 
are probably more lawyers than the number I have given. 



CHAP. XIII THE HOUSE OF REPRESENTATIVES 171 

in the civil service of the United States, can sit. 
Scarcely any of the great railway men go into Con- 
gress, a fact of much significance when one considers 
that they are really the most powerful people in the 
country ; and of the numerous lawyer members very few 
are leaders of the bar in their respective States. The 
reason is the same in both cases. Eesidence in Washing- 
ton makes practice at the bar of any of the great cities 
impossible, and men in lucrative practice would not 
generally sacrifice their profession in order to sit in the 
House, while railway managers or financiers are too 
much engrossed by their business to be able to under- 
take the duties of a member. The absence of railway 
men by no means implies the absence of railway in- 
fluence, for it is as easy for a company to influence legis- 
lation fi^om without Congress as from within. 

Most members, including nearly all western men, 
have received their early education in the common 
schools, but one half or more of the whole number 
have also graduated in a university or college. This 
does not necessarily mean what it would mean in 
Europe, for some of the smaller colleges are no better 
than English graumiar schools and not as good as Grer- 
man gymnasia. It is noticeable that in the accounts of 
their career which members prepare for the pages of the 
Congressional Directory, they usually dwell upon the 
fact of their graduation, or state that they have " re- 
ceived an academic education."^ A good many, but 
apparently not the majority, have served in the legis- 
lature of their own State. Comparatively few are 

^ In the Congressional Directory for the fiftieth Congress I find 209 
members claiming to have received a " coUegiate " or " academic " educa- 
tion, 84 owning to an elementary or common school education, and the 
remainder silent on the subject. 



172 THE NATIONAL GOVERNMENT parti 

wealthy, and few are very poor, while scarcely any 
were at the time of their election working men. 
Of course no one could be a working man while he 
sits, for he would have no time to spare for his trade, 
and the salary would more than meet his wants. 
Nothing prevents an artisan from being returned to 
Congress, but there seems little disposition among the 
working classes to send one of themselves. 

A member of the House enjoys the title of Honour- 
able, which is given to him not merely within the House 
(as in England), but in the world at large, as for instance 
in the addresses of his letters. As he shares it with 
members of State senates, all the higher ojfficials, both 
Federal and State, and judges, the distinction is not 
deemed a high one. 

An estimate of the powers of Congress as a whole 
belongs to a later chapter. As regards those of the 
House in particular, it is enough to say that they are in 
theory purely legislative. The House has no share in the 
executive functions of the Senate, nothing to do with 
confirming appointments or approving treaties. On the 
other hand, it has the exclusive right of initiating 
revenue bills and of impeaching officials, features bor- 
rowed, through the State Constitutions, from the English 
House of Commons, and of choosing a President in case 
there should be no absolute majority of presidential 
electors for any one candidate. This very important 
power it exercised in 1801 and 1825.^ 

Setting extraordinary sessions aside, every Congress 
has two sessions, distinguished as the First or Long and 
the Second or Short. The long session begins in the 
fall of the year after the election of a Congress, and con- 
tinues, with a recess at Christmas, till the July or August 

^ See above, Chapter V. 



CHAP. XIII THE HOUSE OF REPRESENTATIVES 173 

following. The short session begins in the December 
after the July adjournment, and lasts till the 4th of 
March following. The whole working life of a House is 
thus from ten to twelve months. Bills do not, as in the 
English Parliament, expire at the end of each session ; 
they run on from the long session to the short one. All 
however that have not been passed when the fatal 4th 
March arrives perish forthwith, for the session being 
fixed by statute cannot be extended at pleasure.^ There 
is consequently a terrible scramble to get business pushed 
through in the last week or two of a Congress. 

The House usually meets at noon, and sits till four 
or six o'clock, though towards the close of a session these 
hours are lengthened. Occasionally when obstruction 
occurs, or when at the very end of a session messages 
are going backwards and forwards between the House, 
the Senate, and the President, it sits all night long. 

The usages and rules of procedure of the House, 
which difier in many respects from those of the Senate, 
are too numerous to be described here. It is said that 
an industrious member needs one whole session to learn 
them. I will advert only to a few points of special 
interest, choosing those which illustrate American poli- 
tical ideas or bring out the points of likeness and un- 
likeness between Congress and the English Parliament. 
The subject of committees will require a chapter to itself 

An oath or aflSrmation of fidelity to the Constitution 
of the United States is (as prescribed by the Constitu- 
tion) taken by all members;^ also by the clerk, the 
sergeant-at-arms, the doorkeeper, and the postmaster. 

^ Senate bills do not die by effluxion of time. 

A proposal recently made to extend the session till April and have 
the President inaugurated then seems likely to be adopted. 

2 The oath is administered by the Speaker, and in the form following : 



174 THE NATIONAL GOVERNMENT parti 

The sergeant-at-arms is the treasurer of the House, 
and pays to each member his salary and mileage 
(travelling expenses). He has the custody of the mace, 
and the duty of keeping order, which in extreme cases 
he performs by carrying the mace into a throng of dis- 
orderly members. This symbol of authority, which, as 
in the House of Commons, is moved from its place 
when the House goes into committee, consists of the 
Roman yjxsce^, in ebony, bound with silver bands in the 
middle and at the ends, each rod ending in a spear head, 
at the other end a globe of silver, and on the globe a 
silver eagle ready for flight. English precedent suggests 
the mace, but as it could not be surmounted by a crown, 
Rome has prescribed its design. 

The clerk of the last preceding House acts as a sort 
of temporary chairman till a Speaker is chosen ; members 
then address him, and he decides questions of order. 

The proceedings each day begin with prayers, which 
are conducted by a chaplain who is appointed by the 
House, not as in England by the Speaker, and who may, 
of course, be selected from any religious denomination.^ 
Lots are drawn for seats at the beginning of the session, 
each member selecting the place he pleases according as 
his turn arrives. By courtesy the senior member is 
allowed to retain the seat he has appropriated before the 

" I do solemnly swear (or affimi) that I will support the Constitution of 
the United States against all enemies, foreign and domestic ; that I wiU 
bear true faith and allegiance to the same ; that I take this obligation 
freely without any mental reservation or purpose of evasion, and that 1 
wiU well and faithfully discharge the duties of the office on which I am 
about to enter, so help me God." " Allegiance " to a legal instrument 
would have seemed an odd expression to those ages in which the notion 
of allegiance arose. 

^ Sermons do not seem to have been ever preached before either 
House of Congress, as they still occasionally are before the House of Com- 
mons. A sermon was preached at the opening of the French States General 
in 1789. 



CHAP. XIII THE HOUSE OF REPRESENTATIVES 175 

drawing by putting his hat upon it. The places at the 
extreme right and left of the chair are the least desired. 
Members generally try to secure seats near their friends, 
or other members from the same State. Although the 
Democrats are mostly to the Speaker's right hand, mem- 
bers do not sit strictly according to party, a circum- 
stance which deprives invective of much of its dramatic 
eflFect. One cannot, as in England, point the finger of 
scorn at " hon. gentlemen opposite." Every member is 
required to remain uncovered in the House. 

Every member addresses the Speaker and the Speaker 
only, and refers to another member not by name but as 
the " gentleman from Pennsylvania," or as the case may 
be, without any particular indication of the district 
which the person referred to represents. As there are 
twenty-eight gentlemen from Pennsylvania, and the 
descriptives used in the English House of Commons 
(learned, gallant, right honourable) are not in use, facili- 
ties for distinguishing the member intended are not 
perfect. A member usually speaks from his seat, but 
may speak from the clerk's desk or from a spot close to 
the Speaker's chair. No one may pass between the 
Speaker and the member speaking, a curious bit of ad- 
herence to English usage. 

Divisions were originally (rule of 17th April 1789) 
taken by going to the right and left of the chair, accord- 
ing to the old practice of the English House of Commons.^ 

^ It was not until 1836 (and in fact as a result of the change in the 
character of the House of Commons made by the Reform Act of 1832) that 
the present system of recording the names of members who vote by making 
them pass through lobbies was introduced at Westminster. Till then one 
party remained in the House while the other retired into the lobby, and 
only the numbers were recorded. Much dislike was at first evinced to 
the new plan, and the tellers sometimes found it difficult to ascertain the 
names of members as they walked past them. At present the tellers 
merely count the numbers, and the names are taken by four division clerks. 



176 THE NATIONAL GOVERNMENT parti 

This having been found inconvenient, a resolution of 
9th June 1789 established the present practice, whereby 
members rise in their seats and are counted in the first 
instance by the Speaker, but if he is in doubt, or if a 
count be required by one-fifth of a quorum (i,e, by one- 
tenth of the whole House), then by two tellers named b)^ 
the Speaker, between whom, as they stand in the middle 
gangway, members pass. If one-fifth of a quorum 
demand a call of yeas and nays, this is taken ; the clerk 
calls the full roll of the House, and each member answers 
aye or no to his name, or says " no vote'' When the whole 
roll has been called, it is called over a second time to let 
those vote who have not voted in the first call. Mem- 
bers may now change their votes. Those who have 
entered the House after their names were passed on the 
second call cannot vote, but often take the opportunity 
of rising to say that they would, if then present in the 
House, have voted for (or against) the motion. All this 
is set forth in the Congressional Record^ which also con- 
tains a list of the members not voting and of the pairs. 
When the question is an important one, it is 
obviously necessary that the names of members voting 
should be put on record. But the call is sometimes 
demanded in order to give people time to consider how 
they should vote, and while it is proceeding members 
may be seen running hither and thither to take the 
advice of friends or prominent men, not answering to 
their names on the first call, but awaiting the second 
call to vote. A process which consumes so much time, 
for it takes an hour and a quarter to call through the 
three hundred and twenty -five names, is an obvious 
and effective engine of obstruction. It is frequently so 
used, for it can be demanded not only on questions of 
substance, but on motions to adjourn. This is a rule 



CHAP. XIII THE HOUSE OF REPRESENTATIVE^ 177 

which the House cannot alter, for it rests on an express 
provision of the Constitution, Art. i. § 5. 

No one may speak more than once to the same 
question, unless he be the mover of the motion pend- 
ing, in which case he is permitted to reply after every 
member choosing to speak has spoken. 

Speeches are limited to one hour, subject to a power 
to extend this time by unanimous consent, and may, 
in committee of the whole House, be limited to five 
minutes. So far as I could learn, this hour rule works 
very well, and does not tend to bring speeches up to 
that length as a regular thing. A member is at liberty 
to give part of his time to other members, and this is in 
practice constantly done. The member speaking will 
say : *' I yield the floor to the gentleman from Ohio for 
five minutes," and so on. Thus a member who has 
once secured the floor has a large control of the debate. 

The great remedy against prolix or obstructive de- 
bate is the so-called previous question, which is moved 
in the form, " Shall the main question be now put ? " 
and when ordered cWses forthwith all debate, and 
brings the House to a direct vote on that main question. 
On the motion for the putting of the main question no 
debate is allowed ; but it does not destroy the right of 
the member "reporting the measure under considera- 
tion " from a committee, to wind up the discussion by 
his reply. This closure of the debate may be moved 
by any member without the need of leave from the 
Speaker, and requires only a bare majority of those 
present. When directed by the House to be applied in 
committee, for it cannot be moved after the House has 
gone into committee, it has the effect of securing five 
minutes to the mover of any amendment, and five 
minutes to the member who first "obtains the floor" 

VOL. I N 



178 THE NATIONAL GOVERNMENT parti 

(gets the chance of speaking) in opposition to it, per- 
mitting no one else to speak. A member in proposing 
a resolution or motion usually asks at the same time 
for the previous question upon it, so as to prevent it 
from being talked out. 

Closure by previous question is in almost daily use, 
and is considered so essential to the progress of business 
that I never found any member or official who thought 
it could be dispensed with. Even the senators, who 
object to its introduction into their own much smaller 
chamber, agree that it must exist in a large body like 
the House. To the inquiry whether it was abused, 
most of my informants answered that this rarely hap- 
pened, while one, a gentleman officially connected with 
the House for thirty years, during fourteen of which he 
had been clerk, went so far as to say that he had never 
known a case of abuse. This is attributed to the fear 
entertained of the disapproval of the people, and to the 
sentiment within the House itself in favour of fiill and 
fair discussion, which sometimes induces the majority to 
refuse the previous question when demanded by one of 
their own party, or on behalf of a motion which they 
are as a whole supporting. '* No one," they say, " who 
is hond fde discussing a subject in a sensible way, 
would be stopped by the application of the previous 
question. On the other hand we should never get 
appropriation bills through without it." 

Notwithstanding this powerful engine for expediting 
business, obstruction, or, as it is called in America, 
filibustering, is by no means unknown. It is usually 
practised by making repeated motions for the adjourn- 
ment of a debate, or for "taking a recess" (suspending 
the sitting), or for calling the yeas and nays. Between 
one such motion and another some business must inter- 



CHAP. XIII THE HOUSE OF REPRESENTATIVES 17() 

vene, but as the making of a speech is " business," there 
is no difficulty in complying with this requirement. 
No speaking is permitted on these obstructive motions, 
yet by them time may be wasted for many continuous 
hours, and if the obstructing minority is a strong one, 
it generally succeeds, if not in defeating a measure, yet 
in extorting a compromise. It must be remembered 
that owing to the provision of the Constitution above 
mentioned, the House is in this matter not sovereign 
even over its own procedure. That rules are not 
adopted, as they might be, which would do more than 
the present system does to extinguish filibustering, is 
due partly to this provision, partly to the notion that it 
is safer to leave some means open by which a minority 
can make itself disagreeable, and to the belief that 
adequate checks exist on any gross abuse of such means. 
These checks are two. One is the fact that filibustering 
will soon fail unless conducted by nearly the whole of 
the party which happens to be in a minority, and that 
so large a section of the House will not be at the 
trouble of joining in it unless upon some really serious 
question. Some few years ago, seventeen or eighteen 
members tried to obstruct systematically a measure they 
objected to, but their number proved insufficient, and 
the attempt failed. But at an earlier date, during the 
Reconstruction troubles which followed the war, the 
opposition of the solid Democratic party, then in a 
minority, succeeded in defeating a bill for placing five 
of the southern States under military government. 
The other check is found in the fear of popular dis- 
approval. If the nation sees public business stopped 
and necessary legislation delayed by factious obstruc- 
tion, it will visit its displeasure both upon the filibuster- 
ing leaders individually, and on the whole of the party 



i8o THE NATIONAL GOVERNMENT parti 

compromised. However hot party spirit may be, there 
is always a margin of moderate men in both parties 
whom the unjustifiable use of legally permissible modes 
of opposition will alienate. Since such men can make 
themselves felt at the polls when the next election 
arrives, respect for their opinion cools the passion of 
congressional politicians. Thus the general feeling is 
that as the power of filibustering is in extreme cases a 
safeguard against abuses of the system of closure by 
'' previous question," so the good sense of the community 
is in its turn a safeguard against abuses of the oppor- 
tunities which the rules still leave open. One ex- 
Speaker, who had had large experience in leading both 
a majority and a minority of the House, observed to 
me that he thought the rules, taken all in all, as near 
perfection as any rules could be. This savours of official 
optimism. We all know the attachment which those 
who have grown old in working a system show to its 
faults as well as to its merits. Still, true is it that con- 
gressmen generally complain less of the procedure under 
which they live, and which seems to an English 
observer tyrannical, than do members of the English 
House of Commons of the less rigid methods of their 
own ancient and famous body. I know no better in- 
stance of the self-control and good humour of Americans 
than the way in which the minority in the House 
generally submit to the despotism of the majority, con- 
soling themselves with the reflection that it is all accord- 
ing to the rules of the game, and that their turn wall 
come in due course. To use the power of closing debate 
as stringently at Westminster as it is used at Washing- 
ton would revolutionize the life of the House of Com- 
mons. But the House of Representatives is an assembly 
of a very different nature. Like the House of Commons 



CHAP. XIII THE HOUSE OF REPRESENTATIVES i8i 

it is a legislating, if hardly to be deemed a governing, 
body. But it is not a debating body. It rules through 
and by its committees, in which discussion is unchecked 
by any closing power ; and the whole House does little 
more than register by its votes the conclusions which 
the committees submit. One subject alone, the subject 
of revenue, that is to say, taxation and appropriation, 
receives genuine discussion by the House at large. And 
although the "previous question" is often applied to 
expedite appropriation bills, it is seldom applied till 
opportunity has been given for the expression of all 
relevant views. 

The rules regarding the procedure in committee of 
the whole House are in the main similar to those of the 
British House of Commons ; but the chairman of such a 
committee is not (as usually in England) a permanent 
chairman of Ways and Means, but a person nominated 
by the Speaker on each occasion. No member can 
speak twice to any question in Committee of the Whole 
until every member desiring to speak shall have spoken. 

The House has a power of going into secret session 
whenever confidential communications are received from 
the President, or a member informs it that he has com- 
munications of a secret nature to make. But this power 
seems to have been rarely used, certainly never of late 
years. Every word spoken is reported by official steno- 
graphers and published in the Congressional Record, 
and the huge galleries are never cleared. 

The number of bills brought into the House every 
year is very large, averaging over 7000. In the thirty- 
seventh Congress (1861-63) the total number of bills 
introduced was 1026, viz.: — 613 House bills, and 433 
Senate bills. In the forty-sixth it had risen to 9481, of 
which 7257 were House biUs, 2224 Senate biUs, showing 



1 82 THE NATIONAL GOVERNMENT parti 

that the increase has been much larger in the House 
than in the Senate. In the forty -ninth Congress 
(1885-87) the number was rising still further, the number 
up to July 1886 being 12,906, exclusive of 277 joint 
resolutions. In the British House of Commons the total 
number of bills introduced was, in the session of 1885, 
481, of which 202 were public and 279 private bills. ^ 
America is, of course, a far larger country, but the 
legislative competence of Congress is incomparably 
smaller than that of the British Parliament, seeing that 
the chief part of the field both of public bill and private 
bill legislation belongs in America to the several States. 
By far the larger number of bills in Congress are what 
would be called in England "private" or "local and 
personal " bills, i.e. they establish no general rule of law 
but are directed to particular cases. Such are the 
numerous bilk for satisfying persons with claims against 
the Federal Government, and for giving or restoring 
pensions to individuals alleged to have served in the 
Northern armies during the War of Secession. It is 
only to a very small extent that bills can attempt to 
deal with ordinary private law, since nearly the whole 
of that topic belongs to State legislation. It is needless 
to say that the proportion of bills that pass to bills 
that fail is a very small one, not one- thirtieth. ^ As 
in England so even more in America, bills are lost 

^ The session of 1886 was cut short by a dissolution, and therefore is 
not a typical case. 

2 In the British Parliamentary session of 1885, out of 202 public bills 
brought in, 144 passed the House of Commons, and several of these were 
rejected by the House of Lords. Of these 144 public biUs 116 had 
originated in the House of Commons, 28 in the House of Lords, 54 
were Government biUs, 62 "provisional order" bills, only 28 bills of 
private members. Of the 279 private bUls 203 passed. The number 
of public bills introduced is increasing in England, but not so rapidly 
as in America. In the session of 1888, 282 (besides 45 provisional order 
bills) had been introduced in the House of Commons up to 13th July, a 
few of them brought from the House of Lords. 



CHAP. XIII THE HOUSE OF REPRESENTATIVES 183 

less by direct rejection than by failing to reach their 
third reading, a mode of extinction which the good- 
nature of the House, or the unwillingness of its members 
to administer snubs to one another, would prefer to 
direct rejection, even were not the want of time a 
sufi&cient excuse to the committees for failing to report 
them. One is told in Washington that few bills are 
brought in with a view to being passed. They are 
presented in order to gratify some particular persons or 
places, and it is well understood in the House that 
they must not be taken seriously. Sometimes a less 
pardonable motive exists. The great commercial com- 
panies, and especiaUy the raiboad companies, are often 
through their land grants and otherwise brought into 
relations with the Federal Government. Bilk are 
presented in Congress which purport to withdraw some 
of the privileges of these companies, or to establish or 
favour rival enterprises, but whose real object is to levy 
blackmail on these wealthy bodies, since it is often 
cheaper for a company to buy oflF its enemy than to 
defeat him either by the illegitimate influence of the 
lobby, or by the strength of its case in open combat. 
Several great corporations have thus to maintain a per- 
manent staff" at Washington for the sake of resisting 
legislative attacks upon them, some merely extortionate, 
some intended to win local popularity. 

The title and attributions of the Speaker of the 
House are taken from his famous English original. But 
the character of the office has greatly altered from that 
original. The note of the Speaker of the British House of 
Commons is his impartiality. He has indeed been chosen 
by a party, because a majority means in England a 
party. But on his way from his place on the benches 
to the Chair he is expected to shake off" and leave behind 



1 84 THE NATIONAL GOVERNMENT parti 

all party ties and sympathies. Once invested with the 
wig and gown of office he has no longer any political 
opinions, and must administer exactly the same treatment 
to his political friends and to those who have been 
hitherto his opponents, to the oldest or most powerful 
minister and to the youngest or least popular member. 
His duties are limited to the enforcement of the rules 
and generally to the maintenance of order and decorum 
in debate, including the selection, when several members 
rise at the same moment, of the one who is to carry on 
the discussion. These are duties of great importance, 
and his position one of great dignity, but neither the 
duties nor the position imply political power. It makes 
little difference to any English party in Parliament 
whether the occupant of the chair has come from their 
own or from the hostile ranks. The Speaker can lower 
or raise the tone and efficiency of the House as a 
whole by the way he presides over it: but a custom 
as strong as law forbids him to render help to his own 
side even by private advice. Whatever information as 
to parliamentary law he may feel free to give must be 
equally at the disposal of every member. 

In America the Speaker has immense political power, 
and is permitted, nay expected, to use it in the interests 
of his party. In calling upon members to speak he 
prefers those of his own side. He decides in their 
favour such points of order as are not distinctly covered 
by the rules. His authority over the arrangement of 
business is so large that he can frequently advance 
or postpone particular bills or motions in a way 
which determines their fate. Although he does not 
figure in party debates in the House, he may and 
does advise the other leaders of his party privately ; 
and when they "go into caucus'' (i.e. hold a party 



CHAP. XIII THE HOUSE OF REPRESENTATIVES 185 

meeting to determine their action on some pending 
question) he is pi:esent and gives counsel. He is 
usually the most eminent member of the party who 
has a seat in the House, and is really, so far as the 
confidential direction of its policy goes, almost its 
leader. His most important privilege is, however, the 
nomination of the numerous standing committees 
already referred to. In the first Congress (April 1789) 
the House tried the plan of appointing its com- 
mittees by ballot; but this worked so ill that in 
January 1790 the following rule was passed: — "All 
committees shall be appointed by the Speaker unless 
otherwise specially directed by the House." This rule 
has been re-adopted by each successive Congress since 
then.^ Not only does he, at the beginning of each 
Congress, select all the members of each of these com- 
mittees, he even chooses the chairman of each, and 
thereby vests the direction of its business in hands 
approved by himself. The chairman is of course 
always selected from the party which commands the 
House, and the committee is so composed as to give 
that party a majority. Since legislation, and so much 
of the control of current administration as the House 
has been able to bring within its grasp, belong to these 
committees, their composition practically determines the 
action of the House on all questions of moment, and as 
the chairmanships of the more important committees 
are the posts of most influence, the disposal of them is a 

^ In En^Umd select committees on public matters are appointed by 
the House, i.e, practically by the " whips " of the several parties, though 
sometimes a discussion in the House leads to the addition of other mem- 
bers. Hybrid committees are appointed partly by the House and partly 
by the committee of Selection. Private bill committees are appointed 
by the committee of Selection. This committee is a small body of the 
older and more experienced members, intended to represent fairly all 
parties and sections of opinion. 



1 86 THE NATIONAL GOVERNMENT parti 

tremendous piece of patronage by which a Speaker can 
attract support to himself and his own section of the 
party, reward his friends, give politicians the oppor- 
tunity of rising to distinction or practically extinguish 
their congressional career. The Speaker is, of course, 
far from free in disposing of these places. He has been 
obliged to secure his own election to the chair by pro- 
mises to leading members and their friends ; and while 
redeeming such promises, he must also regard the wishes 
of important groups of men or types of opinion, must 
compliment particular States by giving a place on good 
committees to their prominent representatives, must 
avoid nominations which could alarm particular in- 
terests. These conditions surround the exercise of his 
power with trouble and anxiety. Yet after all it is 
power, power which in the hands of a capable and 
ambitious man becomes so far-reaching that it is no 
exaggeration to call him the second, if not the first 
political figure in the United States, with an influence upon 
the fortunes of men and the course of domestic events 
superior, in ordinary times, to the President's, although 
shorter in its duration and less patent to the world. ^ 
The Speaker's distribution of members among the 

^ "The appointment of the committees implies the distribution of 
work to every member. It means the determination of the cast business 
shall take. It decides for or against all large matters of policy, or may 
so decide ; for while Speakers will differ from each other greatly in force 
of character and in the wish to give positive direction to afifairs, the weak- 
est man cannot escape from the necessity of arranging the appointments 
with a view to the probable character of measures which wiU be agitated. 
This, however, is far from the measure of the Speaker's power. All rules 
are more or less flexible. The current of precedents is never consistent or 
uniform. The bias of the Speaker at a critical moment will turn the 
scale. Mr. Randall as Speaker determined the assent of the House to 
the action of the Electoral Commission [of 1877]. Had he wished for a 
revolutionary attempt to prevent the announcement of Hayes's election, no 
one who has had experience in Congress, at least, will doubt that he could 
have forced the collision." — From an article in the New York Nation of 
April 4, 1878, by an experienced member of Congress. 



CHAP. XIII THE HOUSE OF REPRESENTATIVES 187 

committees is, next to his own election, the most critical 
point in the history of a Congress, and that watched with 
most interest. He devotes himself to it for the fort- 
night after his installation with an intensity equalling that 
of a European prime minister constructing a cabinet. 
The parallel goes further, for as the chairmanships of the 
chief committees may be compared to the cabinet offices 
of Europe, so the Speaker is himself a great party leader 
as well as the president of a deliberative assembly. 

Although expected to serve his party in all possible 
directions, he must not resort to all possible means. 
Both in the conduct of debate and in the formation of 
committees a certain measure of fairness to opponents is 
required from him. He must not palpably wrest the 
rules of the House to their disadvantage, though he may 
decide all doubtful points against them. He must give 
them a reasonable share of '* the floor " (i.e. of debate). 
He must concede to them proper representation on com- 
mittees. To define his duties on these points is impossible ; 
yet everybody knows when they have been neglected, as 
was the case with a recent Speaker, whom I heard 
universally condemned because he had usually '' recog- 
nized" (i.e. called on in debate) his own friends only, 
and had otherwise crossed the line which custom has 
drawn between ordinary and oppressive partisanship. 

The dignity of the Speaker's office is high. He 
receives a salary of $8000 a year (£1600), which is a 
large salary for America. In rank he stands next after 
the President and on a level with the justices of the 
Supreme Court. Washington society was lately agitated 
by a claim of his wife to take precedence over the 
wives of these judges, a claim so ominous in a demo- 
cratic country that efforts were made to have it adjusted 
without a formal decision. 



CHAPTER XIV 



THE HOUSE AT WORK 



An Englishman expects to find his House of Commons re- 
produced in the House of Representatives. He has the 
more reason for this notion because he knows that the latter 
was modelled on the former, has borrowed many of its 
rules and technical expressions, and regards the procedure 
of the English chamber as a storehouse of precedents for 
its own guidance.^ The notion is delusive. Resemblances 
of course there are. But an English parliamentarian who 
observes the American House at work is more impressed 
by the points of contrast than by those of similarity. 
The life and spirit of the two bodies are wholly difierent. 
The room in which the House meets is in the south 
wing of the Capitol, the Senate and the Supreme Court 
being lodged in the north wing. It is more than thrice 
as large as the English House of Commons, with a floor 
about equal in area to that of Westminster Hall, 139 
feet long by 93 feet wide and 36 feet high.^ Light is 

^ Both the Senate and the House of Representatives have recognized 
Jefferson's Manual of Parliamentary Practice as governing the House when 
none of its own rules (or of the joint rules of Congress) is applicable. This 
manual, prepared by President Jefferson, is based on English precedents. 

- Not reckoning in the staircase at the south end of Westminster 
Hall. The figure of the two halls is different, Westminster HaU being 
rather longer, and the House of Representatives wider. The English 
House of Commons is only 75 feet long by 45 broad. 



CHAP. XIV THE HOUSE AT WORK 189 

admitted through the ceiling. There are on all sides 
deep galleries running backwards over the lobbies, and 
capable of holding two thousand i&ve hundred persons. 
The proportions are so good that it is not till you ob- 
serve how small a man looks at the farther end, and 
how faint ordinary voices sound, that you realize its 
vast size. The seats are arranged in curved concentric 
rows looking towards the Speaker, whose handsome 
marble chair is placed on a raised marble platform pro- 
jecting slightly forward into the room, the clerks and 
the mace below in front of him, in front of the clerks 
the oflScial stenographers, to the right the seat of the 
sergeant-at-arms. Each member has a revolving arm- 
chair, with a roomy desk in front of it, where he 
writes and keeps his papers. Behind these chairs runs 
a raiUng, and behind the railing is an open space into 
which strangers may be brought, where sofas stand 
against the wall, and where smoking is practised, even 
by strangers, though the rules forbid it. 

When you enter, your j&rst impression is of noise 
and turmoil, a noise like that of short sharp waves 
in a Highland loch, fretting under a squall against 
a rocky shore. The raising and dropping of desk 
lids, the scratching of pens, the clapping of hands 
to call the pages, keen little boys who race along 
the gangways, the pattering of many feet, the hum of 
talking on the floor and in the galleries, make up a din 
over which the Speaker with the sharp taps of his 
hammer, or the orators straining shriU throats, find it 
hard to make themselves audible. I never heard 
American voices sound so harsh or disagreeable as they 
do here. Nor is it only the noise that gives the im- 
pression of disorder. Often three or four members 
are on their feet at once, each shouting to catch 



IQO THE NATIONAL GOVERNMENT parti 

the Speaker's attention. Others, tired of sitting 
still, rise to stretch themselves, while the Western 
visitor, long, lank, and imperturbable, leans his arms on 
the railing, chewing his cigar, and surveys the scene 
with little reverence. Less favourable conditions for 
oratory cannot be imagined, and one is not surprised to 
be told that debate was more animated and practical 
in the much smaller room which the House formerly 
occupied. 

Not only is the present room so big that only a 
powerful and well-trained voice can fill it, but the desks 
and chairs make a speaker feel as if he were addressing 
furniture rather than men, while of the members few 
seem to listen to the speeches. It is true that they sit 
in the House instead of running out into the lobbies as 
people do in the British House of Commons, but they 
are more occupied in talking or writing, or reading 
newspapers, than in attending to the debate. To attend 
is not easy, for only a shriQ voice can overcome the 
murmurous roar ; and one sometimes finds the news- 
papers in describing an unusually efiective speech, 
observe that "Mr. So-and-So's speech drew listeners 
about him from all parts of the House." They could 
not hear him where they sat, so they left their places to 
crowd in the gangways near him. "' Speaking in the 
House," says an American writer, "is like trying to 
address the people in the Broadway omnibuses firom the 
kerbstone in front of the Astor House. . . . Men of fine 
intellect and of good ordinary elocution have exclaimed 
in despair that in the House of Eepresentatives the 
mere physical efibrt to be heard uses up all the powers, 
so that intellectual action becomes impossible. The 
natural refuge is in written speeches or in habitual 
silence, which one dreads more and more to break." 



CHAP. XIV THE HOUSE AT WORK 191 

It is hard to talk calm good sense at the top of your 
voice, hard to unfold a complicated measure. A speaker's 
vocal organs react upon his manner, and his manner on 
the substance of his speech. It is also hard to thunder 
at an unscrupulous majority or a factious minority 
when they do not sit opposite to you, but all round 
you and behind you as is the case in the House. The 
Americans think this an advantage, because it prevents 
scenes of disorder. They may be right ; but what order 
gains oratory loses. It is admitted that the desks are 
a mistake, as encouraging inattention by enabling men 
to write their letters ; but though nearly everybody 
agrees that they would be better away, nobody supposes 
that a proposition to remove them would succeed.^ So 
too the huge galleries add to the area the voice has to 
fill ; but the public like them, and might resent a 
removal to a smaller room. The smoking shocks an 
Englishman, but not more than the English practice of 
wearing hats in both Houses of Parliament shocks an 
American. Interruption, cries of ** Divide," interjected 
remarks, are not more frequent — when I have been 
present they seemed to be much less frequent — than in 
the House of Commons. Applause is given more 
charily, as is usually the case in America. Instead of 
" Hear, hear," there is a clapping of hands and hitting 
of desks. 

The method of taking a division by calling on each 
party to stand up, first the ayes and then the noes, is 
more expeditious than the English plan of sending men 
into opposite lobbies, but the calling of the roll, which 
one-fifth of half the House can and frequently does 

^ The House decided in 1859, at the end of one Congress, that the 
desks should be removed from the HaU (as the House is caUed), but in the 
next succeeding session the old arrangement was resumed. 



192 THE NATIONAL GOVERNMENT parti 

demand, is slower. Both methods of dividing are less 
dramatic than the English, and neither compels a man 
to vote, for if you wish to abstain, you need not rise ; 
and when the roll is called you may refrain from 
answering to your name, or may slip outside the bar. 

There is little good speaking. I do not mean merely 
that j&ne oratory, oratory which presents valuable 
thoughts in eloquent words, is rare, for it is rare in all 
assemblies. But in the House of Representatives a 
set speech upon any subject of importance tends to 
become not an exposition or an argument but a piece of 
elaborate and high-flown declamation. Its author is 
often wise enough to send direct to the reporters what 
he has written out, having read aloud a small part of it 
in the House. When it has been printed in extenso in 
the Congressional Record (leave to get this done being 
readily obtained), he has copies struck ofi" and distributes 
them among his constituents. Thus everybody is pleased 
and time is saved. ^ 

That there is not much good business debating, 
by which I mean a succession of comparatively short 
speeches addressed to a practical question, and ham- 
mering it out by the collision of mind with mind, arises 
not from any want of ability among the members, but 
from the unfavourable conditions under which the 
House acts. Most of the practical work is done in the 
standing committees, while much of the House's time 
is consumed in pointless discussions, where member after 
member delivers himself upon large questions, not likely 
to be brought to a definite issue. Many of the speeches 
thus called forth have a value as repertories of facts, but 

^ I was told that formerly speeches might be printed in the Record 
as a matter of course, but that, a member having used this privilege to print 
and circulate a poem, the right was restrained. 



CHAP. XIV THE HOUSE AT WORK 193 

the debate as a whole is unprofitable and languid. On 
the other hand the five -minute debates which take 
place, when the House imposes that limit of time, 
in Committee of the Whole on the consideration of 
a bill reported from a standing committee, are often 
lively, pointed, and efiective. The topics which excite 
most interest and are best discussed are those of taxation 
and the appropriation of money, more particularly to 
public works, the improvement of rivers and harbours, 
erection of Federal buildings, and so forth. This kind 
of business is indeed to most of its members the chief 
interest of Congress, the business which evokes the finest 
skill of a tactician and ofiers the severest temptations 
to a frail conscience. As a theatre or school either of 
political eloquence or political wisdom, the House has 
been inferior not only to the Senate but to most 
European assemblies. Nor does it enjoy much con- 
sideration at home. Its debates are very shortly re- 
ported in the Washington papers as well as in those in 
Philadelphia and New York. They are not widely read, 
and do little to instruct or influence public opinion. 

This is of course only one part of a legislature's 
functions. An assembly may despatch its business 
successfully and yet shine with few lights of genius. 
But the legislation on public matters which the House 
turns out is scanty in quantity and generally mediocre 
in quality. What is more, the House tends to avoid 
all really grave and pressing questions, skirmishing 
round them, but seldom meeting them in the face or 
reaching a decision which marks an advance. If one 
makes this observation to an American, he replies that 
at this moment there are few such questions lying 
within the competence of Congress, and that in his 
country representatives must not attempt to move 

VOL. I 



194 THE NATIONAL GOVERNMENT parti 

faster than their constituents. This latter remark is 
eminently true ; it expresses a feeling which has gone 
so far that Congress conceives its duty to be to follow 
and not to seek to lead public opinion. The harm 
actually suffered so far is not grave. But the European 
observer cannot escape the impression that Congress 
might fail to grapple with a serious public danger, and 
is at present hardly equal to the duty of guiding and 
instructing the political intelligence of the nation. 

In all assemblies one must expect abundance of 
unreality and pretence, many speeches obviously 
addressed to the gallery, many bills meant to be cir- 
culated but not to be seriously proceeded with. How- 
ever, the House seems to indulge itself more freely 
in this direction than any other chamber of equal 
rank. Its galleries are large, holding 2500 persons. 
But it talks and votes, I will not say to the 
galleries, for the galleries cannot hear it, but as if 
every section of American opinion was present in the 
room. It adopts unanimously resolutions which perhaps 
no single member in his heart approves of, but which 
no one cares to object to, because it seems not worth 
while to do so. This habit sometimes exposes it to a 
snub, such as that administered by Prince Bismarck in 
the matter of the resolution of condolence with the 
German Parliament on the death of Lasker, a resolution 
harmless indeed but certainly superfluous and possibly 
obtrusive. A practice unknown to other countries is of 
course misunderstood by them, and may provoke re- 
sentment. The resolution requesting the British Govern- 
ment to suspend the execution of O'Donnell, the mur- 
derer of the informer Carey, was adopted by the House 
as a mere matter of form, nobody, except a few Irish 
members, desiring it, and not even they expecting it to 



CHAP. XIV THE HOUSE AT WORK 195 

produce any eflFect. A bill brought into the House 
in the session of 1&86 requesting the President to 
summon a commercial Congress of all transatlantic 
republics to form a species of American commercial 
league, produced alarm in the British West Indies and 
led to solemn questions in the British House of Commons, 
while few people in America noticed it. American 
statesmen keep their pockets full of the loose cash of 
empty compliments and pompous phrases, and become 
so accustomed to scatter it among the crowd that they 
are surprised when a complimentary resolution or 
electioneering bill, intended to humour some section of 
opinion at home, is taken seriously abroad. The House 
is particularly apt to err in this way, because having no 
responsibility in foreign policy, and little sense of its 
own dignity, it applies to international affairs the habits 
of election meetings. 

Watching the House at work, and talking to the 
members in the lobbies, an Englishman naturally asks 
himself how the intellectual quality of the body compares 
with that of the House of Commons. His American 
friends have prepared him to expect a marked inferiority. 
They are fond of running down congressmen. The 
cultivated New Englanders and New Yorkers do this 
out of intellectual fastidiousness, and in order to support 
the r61e which they unconsciously fall into when talking 
to Europeans. The rougher Western men do it because 
they would not have congressmen either seem or be 
better in any way than themselves, since that would be 
opposed to republican equality. A stranger who has 
taken literally all he hears is therefore surprised to 
find so much character, shrewdness, and keen though 
limited intelligence among the representatives. Their 
average business capacity did not seem to me below that 



196 THE NATIONAL GOVERNMENT parti 

of members of the House of Commons of 1880-85. 
True it is that great lights, such as usually adorn 
the British chamber, are absent : true also that there 
are fewer men who have received a high education which 
has developed their tastes and enlarged their horizons. 
The want of such men depresses the average. It 
is raised, however, by the almost total absence of 
two classes hitherto well represented in the British 
Parliament, the rich, dull parvenu, who has bought 
himself into public life, and the perhaps equally 
unlettered young sporting or fashionable man who, 
neither knowing nor caring anything about politics, has 
come in for a county or (before 1885) a small borough, 
on the strength of his family estates. Few congress- 
men sink to so low an intellectual level as these two 
sets of persons, for congressmen have almost certainly 
made their way by energy and smartness, picking up a 
knowledge of men and things " all the time." In respect 
of width of view, of capacity for penetrating thought 
on political problems, representatives are scarcely above 
the class from which they came, that of second-rate 
lawyers or farmers, less often merchants or petty 
manufacturers. They do not pretend to be statesmen 
in the European sense of the word, for their careers, 
which have made them smart and active, have given 
them little opportunity for acquiring such capacities. 
As regards manners they are not polished, because they 
have not lived among polished people ; yet neither are 
they rude, for to get on in American politics one must 
be civil and pleasant. The standard of parliamentar}' 
language, and of courtesy generally, has been steadily 
rising during the last few decades ; I am not sure that 
it is now lower than in the British House of Commons, 
where those same decades appear to have witnessed 



CHAP. XIV THE HOUSE AT WORK 197 

a decline. Scenes of violence and confusion such as 
occasionally convulse the French chamber, and were 
common in Washington before the War of Secession, 
are now unknown. 

On the whole, the most striking difference between 
the House of Eepresentatives and European popular 
assemblies is its greater homogeneity. The type is 
marked ; the individuals vary little from the type. In 
Europe all sorts of persons are sucked into the vortex of 
the legislature, nobles and landowners, lawyers, physi- 
cians, business men, artisans, journalists, men of 
learning, men of science. In America i&ve repre- 
sentatives out of six are politicians pure and simple, 
members of a class as weU defined as any one of the 
above-mentioned European classes. The American people, 
though it is composed of immigrants from every country 
and occupies a whole continent, tends to become more 
uniform than most of the great European peoples ; and 
this characteristic is palpable in its legislature. 

Uneasy lies the head of an ambitious congressman,^ 
for the chances are about even that he will lose his seat 
at the next election. It was observed in 1788 that half 
of the members of each successive State legislature were 
new members, and this average has been maintained in 
the Federal legislature. In the forty-eighth Congress, 
elected in 1882, only 148 out of the 325 members had 
sat in the forty-seventh Congress. In the fiftieth the 
proportion was slightly larger, but only 206 out of the 
325 members had sat in any preceding Congress. In 
England the proportion of members re-elected from 

^ The term " Congressman " is commonly used to describe a member 
of the House of Representatives, though of course it ought to include 
senators also. So in England " Member of Parliament " means member 
of the House of Commons, though it covers all persons who have seats 
in the House of Lords. 



198 THE NATIONAL GOVERNMENT parti 

Parliament to Parliament is much higher. It was re- 
marked as a novelty in the Parliament of 1885, elected 
after a sweeping measure for the redistribution of seats, 
that about one-third of the members had not sat in 
the Parliament of 1880. Anyone can see how much 
influence this constant change in the composition of 
the American House must have upon its legislative 
efficiency. 

I have kept to the last the feature of the House 
which an Englishman finds the strangest. 

It has parties, but they are headless. There is 
neither Government nor Opposition ; neither leaders nor 
whips. No minister, no person holding any Federal 
office or receiving any Federal salary, can be a member 
of it. That the majority may be and often is opposed 
to the President and his cabinet, does not strike Ameri- 
cans as odd, because they proceed on the theory that the 
legislative ought to be distinct from the executive 
authority. Since no minister sits, there is no official 
representative of the party which for the time being 
holds the reins of the executive government. Neither 
is there any unofficial representative. And as there are 
no persons whose opinions expressed in debate are 
followed, so there are none whose duty it is to bring up 
members to vote, to secure a quorum, to see that people 
know which way the bulk of the party is going. 

So far as the majority has a chief, that chief is the 
Speaker, who has been chosen by them as their ablest 
and most influential man ; but as the Speaker seldom 
joins in debate (though he may do so by leaving the 
chair, having put some one else in it), the chairman 
of the most important committee, that of Ways and 
Means, enjoys a sort of eminence, and comes nearer 
than any one else to the position of leader of the 



CHAP. XIV THE HOUSE AT WORK 199 

House. ^ But his authority does not always enable him 
to secure co-operation for debate among the best speakers 
of his party, putting up now one now another, after the 
fashion of an English prime minister, and thereby guiding 
the general course of the discussion. 

The minority do not formally choose a leader, nor is 
there usually any one among them whose career marks 
him out as practically the first man, but the person 
whom they have put forward as their party candidate 
for the Speakership, giving him what is called " the com- 
plimentary nomination," has a sort of vague claim to 
be so regarded. This honour amounts to very little. In 
the Congress which met in December 1883, Mr. Keifer 
of Ohio, Speaker in the last preceding Congress, received 
such a complimentary nomination from the Republican 
party against Mr. Carlisle of Kentucky, whom the 
Democratic majority elected. But the Republicans 
immediately afterwards refused to treat Mr. Keifer as 
leader, and left him, on some motion which he made, in 
a ridiculously small minority. 

How then does the House work ? 

If it were a Chamber, like those of France or Germany, 
divided into four or five sections of opinion, none of 
which commands a steady majority, it would not work 
at all. But parties are few in the United States, and 
their cohesion tight. There are usually two only, so 
nearly equal in strength that the majority cannot afibrd 
to dissolve into groups like those of France. Hence upon 
all large national issues, whereon the general sentiment 
of the party has been declared, both the majority and 
the minority know how to vote, and vote solid. 

If the House were, like the English House of Commons, 

^ The Chairman of the Committee on Appropriations has perhaps as 
much real power. 



200 THE NATIONAL GOVERNMENT parti 

to some extent an executive as well as a legislative body 
— one by whose co-operation and support the daily 
business of government had to be carried on— it could 
not work without leaders and whips. This it is not. It 
neither creates, nor controls, nor destroys, the adminis- 
tration, which depends on the President, himself the 
offspring of a direct popular mandate. 

" Still," it may be replied, " the House has important 
functions to discharge. Legislation comes from it. 
Supply depends on it. It settles the tariff, and votes 
money for the civil and military services, besides passing 
measures to cure the defects which experience must dis- 
close in the working of every government, every system 
of jurisprudence. How can it satisfy these calls upon it 
without leaders and organization ? " 

To a European eye, it does not seem to satisfy them. 
It votes the necessary supplies, but not wisely, giving 
sometimes too much, sometimes too little money, and 
taking no adequate securities for the due application of 
the sums voted. For many years past it has fumbled 
over both the tariff problem and the currency problem. 
It produces few useful laws, and leaves on one side grave 
practical questions, such as the silver problem, inter- 
national copyright, the establishment of a general bank- 
rupt law. An Englishman is disposed to ascribe these 
failures to the fact that as there are no leaders, there is 
no one responsible for the neglect of business, the mis- 
carriage of bills, the unwise appropriation of public funds. 
** In England," he says, "the ministry of the day bears 
the blame of whatever goes wrong in the House of 
Commons. Having a majority, it ought to be able to 
do what it desires. If it pleads that its measures have 
been obstructed, and that it cannot under the faulty 
procedure of the House of Commons accomplish what it 



CHAP. XIV THE HOUSE AT WORK 201 

seeks, it is met, and crushed, by the retort that in such 
case it ought to have the procedure changed. What 
else is its majority good for but to secure the efficiency 
of Parliament ? In America there is no person against 
whom similar charges can be brought ; although con- 
spicuous folly or perversity on the part of the majority 
tends to discredit them collectively with the public, 
* and may damage them at the next presidential or con- 
gressional election. But responsibility, to be properly 
effective, ought to be fixed on a few conspicuous leaders. 
Is not the want of such men, men to whom the country 
can look, and whom the ordinary members will follow, 
the cause of some of the faults which are charged 
on Congress, of its hesitations, its inconsistencies and 
changes, its ignoble surrenders to some petty clique, its 
deficient sense of dignity, its shrinking from troublesome 
questions, its proclivity to jobs ? " 

Two American statesmen to whom such a criticism 
was submitted, replied as follows : "It is not for want 
of leaders that Congress has forborne to settle the ques- 
tions mentioned, but because the division of opinion in 
the country regarding them has been faithfully reflected 
in Congress. The majority has not been strong enough 
to get its way ; and this has happened, not only be- 
cause abundant opportunities for resistance arise from 
the methods of doing business, but still more because 
no distinct impulse or mandate towards any particular 
settlement of these questions has been received from 
the country. It is not for Congress to go faster than 
the people. When the country knows and speaks its 
mind, Congress will not fail to act." The significance 
of this feply lies in its pointing to a fundamental 
difierence between the conception of the respective 
positions and duties of a representative body and of 



202 THE NATIONAL GOVERNMENT parti 

the nation at large entertained by Americans, and the 
conception which has hitherto prevailed in Europe. 
Europeans have thought of a legislature as belonging to 
the governing class. In America there is no such class. 
Europeans think that the legislature ought to consist of 
the best men in the country, Americans that it should 
be a fair average sample of the country. Europeans 
think that it ought to lead the nation, Americans that 
it ought to follow the nation. 

Without some sort of organization, an assembly of 
three hundred and thirty men would be a mob, so 
necessity has provided in the system of committees a 
substitute for the European party organization. This 
system of conmiittees will be explained in next chapter ; 
for the present it is enough to observe that when a 
matter which has been (as all bills are) referred to a 
committee, comes up in the House to be dealt with 
there, the chairman of the particular committee is 
treated as a leader 'pro hoc vice, and members who 
knew nothing of the matter are apt to be guided by his 
speech or his advice given privately. If his advice is 
not available, or is suspected because he belongs to the 
opposite party, they seek direction from the member 
in charge of the bUl, if he belongs to their own party, or 
from some other member of the committee, or from 
some friend whom they trust. When a debate arises 
unexpectedly on a question of importance, members 
are often puzzled how to vote. The division being 
taken, they get some one to move a call of yeas and 
nays, and while this slow process goes on, they scurry 
about asking advice as to their action, and give their 
votes on the second calling over if not ready on first. 
If the issue is one of serious consequence to the 
party, a recess is demanded by the majority, say for two 



CHAP. XIV THE HOUSE AT WORK 203 

hours. The House then adjourns, each party "goes 
into caucus" (the Speaker possibly announcing the 
fact), and debates the matter with closed doors. Then 
the House resumes, and each party votes solid accord- 
ing to the determination arrived at in caucus. In spite 
of these expedients, surprises and scratch votes are not 
uncommon. 

I have spoken of the din of the House of Repre- 
sentatives, of its air of restlessness and confusion, con- 
trasting with the staid gravity of the Senate, of the 
absence of dignity both in its proceedings and in the 
bearing and aspect of individual members. All these 
things notwithstanding, there is something impressive 
about it, something not unworthy of the continent for 
which it legislates. 

This huge gray hall, filled with perpetual clamour, 
this multitude of keen and eager faces, this ceaseless 
coming and going of many feet, this irreverent public, 
watching from the galleries and forcing its way on to 
the floor, all speak to the beholder's mind of the mighty 
democracy, destined in another century to form one 
half of civilized mankind, whose aflFairs are here de- 
bated. If the men are not great, the interests and 
the issues are vast and fateful. Here, as so often in 
America, one thinks rather of the future than of the 
present. Of what tremendous struggles may not this 
hall become the theatre in ages yet far distant, when 
the parliaments of Europe have shrunk to insignificance ? 



CHAPTEE XV 

THE COMMITTEES OF OONGRj:SS 

The most abiding difficulty of free government is to get 
large assemblies to work promptly and smoothly either 
for legislative or executive purposes. We perceive this 
difficulty in primary assemblies of thousands of citizens, 
like those of ancient Athens or Syracuse ; we see it again 
in the smaller representative assemblies of modern coun- 
tries. Three methods of overcoming it have been tried. 
One is to leave very few and comparatively simple ques- 
tions to the assembly, reserving all others for a smaller and 
more permanent body, or for executive officers. This was 
the plan of the Romans, where the comitia (primary 
assemblies) were convoked only to elect magistrates and 
pass laws, which were short, clear, and submitted en bloc, 
without possibility of amendment, for a simple Yes or No. 
Another method is to organize the assemblies into well- 
defined parties, each recognizing and guided l^y one or 
more leaders, so that on most occasions and for most 
purposes the rank and file of members exert no volition 
of their own, but move like battalions at the word of 
command. This has been the English system since 
about the time of Queen Anne. It was originally 
worked by means of extensive corruption ; and not till 
this phase was passing away did it become an object of 



CHAP. XV THE COMMITTEES OF CONGRESS 205 

admiration to the world. Latterly it has been reproduced 
in the parliaments of most modern European states and 
of the British colonies. The third method, which admits 
of being more or less combined with the second, is to 
divide the assembly into a number of smaller bodies to 
which legislative and administrative questions may be 
referred, either for final determination or to be examined 
and reported on to the whole body. This is the system of 
committees, applied to some small extent in England, 
to a larger extent in France under the name of bureaux^ 
and most of all in the United States. Some account of 
its rules and working there is essential to a comprehen- 
sion of the character of Congress and of the relations of 
the legislative to the executive branch of the Federal 
Government. 

When Congress first met in 1789, both Houses found 
themselves, as the State legislatures had theretofore 
been and still are, without official members and with- 
out leaders.^ The Senate occupied itself chiefly with 
executive business, and appointed no standing com- 
mittees until 1816. The House however had bills to 
discuss, plans of taxation to frame, difficult questions 
of expenditure, and particularly of the national debt, 
to consider. For want of persons whose official duty 
required them, like English ministers, to run the 
machine by drafting schemes and bringing the raw 
material of its work into shape, it was forced to appoint 
committees. At first there were few ; even in 1802 we 
find only five. As the numbers of the House increased 
and more business flowed in, additional committees were 
appointed ; and as the House became more and more 

1 The Congress of the Confederation (1781-88) had been a sort of 
diplomatic congress of envoys from States, and furnished few precedents 
available for the Congress under the new constitution. 



2o6 THE NATIONAL GOVERNMENT parti 

occupied by large political questions, minor matters 
were more and more left to be settled by these select 
bodies. Like all legislatures, the House constantly 
sought to extend its vision and its grasp, and the easiest 
way to do this was to provide itself with new eyes and 
new hands in the shape of further committees. The 
members were not, like their contemporaries in the 
English House of Commons, well-to-do men, mostly 
idle; they were workers and desired to be occupied 
It was impossible for them all to speak in the House ; 
but all could talk in a committee. Every permanent 
body cannot help evolving some kind of organization. 
Here the choice was between creating one ruling com- 
mittee which should control all business, like an English 
ministry, and distributing business among a number of 
committees, each of which should undertake a special class 
of subjects. The latter alternative was recommended, 
not only by its promising a useful division of labour, 
but by its recognition of republican equality. It there- 
fore prevailed, and the present elaborate system grew 
slowly to maturity. 

To avoid the tedious repetition of details, I have 
taken the House of Representatives and its committees 
for description, because the system is more fully de- 
veloped there than in the Senate. But a very few words 
on the Senate may serve to prevent misconceptions. 

There were in 1888 forty-one standing Senate 
committees, appointed for two years, being the period 
of a Congress.^ They and their chairmen are chosen 
not by the presiding oflScer but by the Senate itself, 

1 Although the Senate is a permanent body, its proceedings are for 
some purposes regulated with reference to the re-election every two years 
of the House ; just as in England the peers are summoned afresh at the 
beginning of each Parliament, although they, except the Scotch repre- 
sentative peers, sit for life. 



CHAP. XV THE COMMITTEES OF CONGRESS 207 

voting by ballot. Practically they are selected by a 
caucus of the party majority meeting in secret conclave, 
and then carried wholesale by vote in the Senate. 
Each consists of firom three to eleven members, the most 
common numbers being seven and nine, and all senators 
sit on more than one committee, some upon four or 
more. The chairman is appointed by the Senate and not 
by the committees themselves. There are also select 
committees appointed for a special purpose and last- 
ing for one session only.^ Every bill introduced goes 
after its first and second reading (which are granted as 
of course) to a standing committee, which examines 
and amends it, and reports it back to the Senate. 

There were in the fiftieth Congress (1888) fifty-four 
standing committees of the House, i.e. committees ap- 
pointed under standing regulations, and therefore regu- 
larly formed at the beginning of every Congress. Each 
committee consists of fi'om three to sixteen members, 
eleven and thirteen being the commonest numbers. ^ 
Every member of the House is placed on some one 
committee, and few on more than one. Besides these, 
select committees on particular subjects of current 
interest are appointed fi'om time to time. In the forty- 
ninth Congress there were seven such committees. A 
complete list of the committees will be found at the end 
of this chapter. The most important standing com- 
mittees are the following : — Ways and means ; approp- 
riations ; elections ; banking and currency ; accounts ; 
rivers and harbours ; judiciary (including changes in 
private law as well as in courts of justice) ; railways and 
canals ; foreign affairs ; naval aflFairs ; military aflFairs ; 

^ In January 1888 there were seven such committees. 
2 The committee rooms are smaller than those of the British 
Parliament ; they are carpeted and furnished like private apartments. 



2o8 THE NATIONAL GOVERNMENT parti 

public lands ; agriculture ; claims ; and the several 
committees on the expenditures of the various depart- 
ments of the administration (war, navy, etc. ) 

The members of every standing committee are nomi- 
nated by the Speaker at the beginning of each Congress, 
and sit through its two sessions ; those of a select com- 
mittee also by the Speaker, after the committee has been 
ordered by the House. A select committee lasts only 
for the session. In pursuance of the rule that the 
member first named shall be chairman, the Speaker has 
also the selection of all the chairmen. 

To some one of these standing committees each and 
every bill is referred. Its second as well as its first 
reading is granted as of course, and without debate, since 
there would be no time to discuss the immense number 
of bills presented. When read a second time it is re- 
ferred under the general rules to a committee ; but 
doubts often arise as to which is the appropriate com- 
mittee, because a bill may deal with a subject common 
to two or more jurisdictions, or include topics some of 
which belong to one jurisdiction, others to another. 
The disputes which may in such cases arise between 
several committees lead to keen debates and divisions, 
because the fate of the measure may depend on which 
of two possible paths it is made to take, since the one 
may bring it before a tribunal of fi'iends, the other 
before a tribunal of enemies. Such disputes are de- 
termined by the vote of the House itself 

Not having been discussed, much less aflSrmed in 
principle, by the House, a bill comes before its com- 
mittee with no presumption in its favour, but rather as 
a shivering ghost stands before Minos in the nether 
world. It is one of many, and for the most a sad fate is 
reserved. The committee may take evidence regarding 



CHAP. XV THE COMMITTEES OF CONGRESS 209 

it, may hear its friends and its opponents. They usually 
do hear the member who has introduced it, since it 
seldom happens that he has himself a seat on the 
committee. Members who are interested approach the 
committee and state their case there, not in the House, 
because they know that the House will have neither 
time nor inclination to listen. The committee can amend 
the bill as they please, and although they cannot form- 
ally extinguish it, they can practically do so by report- 
ing adversely, or by delaying to report it till late in the 
session, or by not reporting it at all. 

In one or other of these ways nineteen-twentieths 
of the bills introduced meet their death, a death which 
the majority doubtless deserve, and the prospect of 
which tends to make members reckless as regards both 
the form and the substance of their proposals. A motion 
may be made in the House that the committee do 
report forthwith, and the House can of course restore 
the bill, when reported, to its original form. But these 
expedients rarely succeed, for few are the measures which 
excite sujBScient interest to induce an impatient and over- 
burdened assembly to take additional work upon its own 
shoulders or to overrule the decision of a committee. 

The deliberations of committees are usually secret. 
Evidence is frequently taken with open doors, but the 
newspapers do not report it, unless the matter excite 
public interest; and even the decisions arrived at are 
often noticed in the briefest way. It is out of order to 
canvass the proceedings of a committee in the House 
until they have been formally reported to it ; and the 
report submitted does not usually state how the mem- 
bers have voted, or contain more than a very curt out- 
line of what has passed. No member speaking in the 
House is entitled to reveal anything further. 

VOL. I p 



2IO THE NATIONAL GOVERNMENT parti 

A committee have technically no right to initiate a 
bill, but as they can either transform one referred to 
them, or, if none has been referred which touches 
the subject they seek to deal with, can procure one 
to be brought in and referred to them, their command 
of their own province is unbounded. Hence the 
character of all the measures that may be passed or 
even considered by the House upon a particular branch 
of legislation depends on the composition of the com- 
mittee concerned with that branch. Some committees, 
such as those on naval and military aflFairs, and those on 
the expenditure of the several departments, deal with 
administration rather than legislation. They have power 
to summon the officials of the departments before them, 
and to interrogate them as to their methods and conduct. 
Authority they have none, for officials are responsible 
only to their chief, the President ; but the power of 
questioning is sufficient to check if not to guide the 
action of a department, since imperative statutes may 
follow, and the department, sometimes desiring legisla- 
tion and always desiring money, has strong motives 
for keeping on good terms with those who control 
legislation and the purse. It is through these com- 
mittees chiefly that the executive and legislative 
branches of government touch one another. Yet the 
contact, although the most important thing in a govern- 
ment, is the thing which the nation least notices, and 
has the scantiest means of watching. 

The scrutiny to which the administrative committees 
subject the departments is so close and constant as to 
occupy much of the time of the officials and seriously 
interfere with their duties. Not only are they often 
summoned to give evidence : they are required to 
furnish minute reports on matters which a member of 



CHAP. XV THE COMMITTEES OF CONGRESS 211 

Congress could ascertain for himself. Nevertheless the 
House committees are not certain to detect abuses or 
peculation, ' for special committees of the Senate have 
repeatedly unearthed dark doings which had passed un- 
suspected the ordeal of a House investigation. After 
a bill has been debated and amended by the committee 
it is reported back to the House, and is taken up when 
that committee is called in its order. One hour is 
allowed to the member whom his fellow committee-men 
have appointed to report. He seldom uses the whole 
of this hour, but allots part of it to other members, 
opponents as well as friends, and usually concludes by 
moving the previous question. This precludes subse- 
quent amendments and leaves only an hour before the vote 
is taken. As on an average each committee (excluding 
the two or three great ones) has only two hours out of 
the whole ten months of Congress allotted to it to present 
and have discussed all its bills, it is plain that few 
measures can be considered, and each but shortly, in the 
House. The best chance of pressing one through is 
under the rule which permits the suspension of standing 
orders by a two-thirds majority during the last six days 
of the session. 

What are the results of this system ? 

It destroys the unity of the House as a legislative 
body. Since the practical work of shaping legislation is 
done in the committees, the interest of members centres 
there, and they care less about the proceedings of the 
whole body. It is as a committee man that a member 
does his real work. In fact the House has become 
not so much a legislative assembly as a huge panel 
from which committees are selected. 

It prevents the capacity of the best members from 
being brought to bear upon any one piece of legislation. 



212 THE NATIONAL GOVERNMENT parti 

however important. The men of most ability and 
experience are chosen to be chairmen of the committees, 
or to sit on the two or three greatest. For other 
committees there remains only the rank and file of 
the House, a rank and file half of which is new at 
the beginning of each Congress. Hence every com- 
mittee (except the aforesaid two or three) is composed 
of ordinary persons, and it is impossible, save by 
creating a special select committee, to get together. what 
would be called in England " a strong committee," t.c. 
one where half or more of the members are exception- 
ally capable. The defect is not supplied by discussion 
in the House, for there is no time for such discussion. 

It cramps debate. Every foreign observer has 
remarked how little real debate, in the European sense, 
takes place in the House of Eepresentatives. The very 
habit of debate, the expectation of debate, the idea that 
debate is needed, have vanished, except as regards ques- 
tions of revenue and expenditure, because the centre of 
gravity has shifted fi'om the House to the committees. 

It lessens the cohesion and hannony of legislation. 
Each committee goes on its own way with its own bills 
just as though it were legislating for one planet and 
the other committees for others. Hence a want of 
policy and method in congressional action. The advance 
is haphazard ; the parts have little relation to one 
another or to the whole. 

It gives facilities for the exercise of underhand and 
even corrupt influence. In a small committee the voice 
of each member is well worth securing, and may be 
secured with little danger of a public scandal. The 
press cannot, even when the doors of committee 
rooms stand open, report the proceedings of fifty 
bodies ; the eye of the nation cannot follow and mark 



CHAP. XV THE COMMITTEES OF CONGRESS 213 

what goes on within them ; while the subsequent pro- 
ceedings in the House are too hurried to permit a 
ripping up there of suspicious bargains struck in the 
purlieus of the Capitol, and fulfilled by votes given 
in a committee. As will be seen subsequently, I do 
not think that corruption, in its grosser forms, is rife 
at Washington. When it appears, it appears chiefly in 
the milder form of reciprocal jobbing or (as it is called) 
"log-rolling." But the arrangements of the committee 
system have produced and sustain the class of profes- 
sional "lobbyists," men, and women too, who make it 
their business to " see " members and procure, by per- 
suasion, importunity, or the use of inducements, the 
passing of bills, public as well as private, which involve 
gain to their promoters. 

It reduces responsibility. In England, if a bad Act 
is passed or a good bill rejected, the blame falls primarily 
upon the ministry in power whose command of the 
majority would have enabled them to defeat it, next 
upon the party which supported the ministry, then upon 
the individual members who are officially recorded to have 
" backed " it and voted for it in the House. The fact that 
a select committee recommended it — and comparatively 
few bills pass through a select committee — would not be 
held to excuse the default of the ministry and the 
majority. But in the United States there is no ministry 
to be blamed, for the cabinet officers do not sit in 
Congress ; the House cannot be blamed because it has 
only followed the decision of its committee ; the com- 
mittee is a comparatively obscure body, whose members 
are usually too insignificant to be worth blaming. The 
chairman is often a man of note, but the people have no 
leisure to watch fifty chairmen, they know Congress 
and Congress only ; they cannot follow the acts of 



214 THE NATIONAL GOVERNMENT parti 

those to whom Congress chooses to delegate its functions. 
No discredit attaches to the dominant party, because 
they could not control the acts of the eleven men in the 
committee room. Thus public displeasure rarely finds 
a victim, and everybody concerned is relieved from the 
wholesome dread of damaging himself and his party 
by negligence, perversity, or dishonesty. Only when a 
scandal has arisen so serious as to demand investigation 
is the responsibility of the member to his constituents 
and the country brought duly home. 

It lowers the interests of the nation in the proceedings 
of Congress.^ Except in exciting times, when large 
questions have to be settled, the bulk of real business is 
done not in the great hall of the House but in this 
labyrinth of committee rooms and the lobbies that 
surround them. What takes place in view of the 
audience is little more than a sanction, formal indeed 
but hurried and often heedless, of decisions procured 
behind the scenes, whose mode and motives remain 
undisclosed. Hence people cease to watch Congress 
with that sharp eye which every principal ought to keep 
fixed on his agent. Acts pass unnoticed, whose results 

1 " The doubt and confusion of thought which must necessarily exist in 
the minds of the vast majority of voters as to the best way of exerting their 
wiU in influencing the action of an assembly whose organization is so 
complex, whose acts are apparently so haphazard, and in which responsi- 
bility is spread so thin, throws constituencies into the hands of local 
politicians who are more visible and tangible than are the leaders of Congress, 
and generates the while a profound distrust of Congress as a body whose 
actions cannot be reckoned beforehand by any standard of promises made 
at elections or any programmes announced by conventions. Constituencies 
can watch and understand a few banded leaders who display plain 
purposes and act upon them with promptness ; but they cannot watch or 
understand forty odd standing committees, each of which goes its own way 
in doing what it can without any special regard to the pledges of either of 
the parties from which its membership is drawn." — Woodrow Wilson, 
Congressional Government^ a lucid and interesting book from which I have 
derived much help in this and the two foUo^ing chapters. 



CHAP. XV THE COMMITTEES OF CONGRESS 215 

are in a few months discovered to be so grave that the 
newspapers ask how it happened that they were allowed 
to pass. 

The country of course suffers from the want of the 
light and leading on public affairs which debates in 
Congress ought to supply. But this is perhaps more 
fairly chargeable to defects of the House which the 
committees are designed to mitigate than to the com- 
mittees themselves. The time which the committee 
work leaves for the sittings of the House is long enough 
to permit due discussion did better arrangements exist 
for conducting it. 

It throws power into the hands of the chairmen 
of committees, especially, of course, of those which deal 
with finance and with great material interests. They 
become practically a second set of ministers, before 
whom the departments tremble, and who, though they 
can neither appoint nor dismiss a post-master or a tide- 
waiter, can by legislation determine the policy of the 
branch of administration which they oversee. This 
power is not necessarily accompanied by responsibility, 
because like everything else about the committees, it is 
largely exercised in secret. Besides, as an able writer 
remarks, '^the more power is divided, the more irre- 
sponsible it becomes. The petty character of the leader- 
ship of each committee contributes towards making its 
despotism sure by making its duties uninteresting." ^ 

It enables the House to deal with a far greater 
number of measures and subjects than could otherwise 
be overtaken ; and has the advantage of enabling evi- 
dence to be taken by those whose duty it is to re-shape 
or amend a bill. It replaces the system of interrogating 
ministers in the House which prevails in most European 

^ Congressional Government, p. 94. 



2i6 THE NATIONAL GOVERNMENT parti 

chambers; and enables the working of the administrative 
departments to be minutely scrutinized. 

It sets the members of the House to work for which 
their previous training has fitted them much better 
than for either legislating or debating "in the grand 
style." They are shrewd keen men of business, apt for 
talk in committee, less apt for wide views of policy and 
elevated discourse in an assembly. The committees are 
therefore good working bodies, but bodies which 
confirm congressmen in the intellectual habits they 
bring with them instead of raising them to the higher 
platform of national questions and interests. 

On the whole, it may be said that under this 
system the House despatches a vast amount of work and 
does the negative part of it, the killing ofi" of worthless 
bills, in a thorough way. Were the committees abolished 
and no other organization substituted, the work could 
not be done. But much of it, including most of the 
private bills, ought not to come before Congress at all ; 
and the more important part of what remains, viz. public 
legislation, is dealt with by methods securing neither the 
pressing forward of the measures most needed, nor the 
due debate of those that are pressed forward. 

Why, if these mischiefs exist, is the system of 
committee legislation maintained ? 

It is maintained because none better has been, or, as 
most people think, can be devised. " We have," say 
the Americans, " three hundred and twenty-five members 
in the House, most of them eager to speak, nearly all of 
them giving constant attendance. The bills brought in 
are so numerous that in our two sessions, one of seven 
or eight months, the other of three months, not one- 
twentieth could be fairly discussed on second reading 
or in committee of the Whole. If even this tw^entieth 



CHAP. XV THE COMMITTEES OF CONGRESS 217 

were discussed, no time would remain for supervision of 
the departments of State. That supervision itself must, 
since it involves the taking of evidence, be conducted 
by committees and not by the whole House. In England 
you have one large and strong committee, viz. the 
ministry of the day, which undertakes all the more 
important business, and watches even the bills of private 
members. Your House of Commons could not work 
for a single sitting without such a committee, as is 
proved by the fact than when you are left for a little 
without a ministry, the House adjourns. We can- 
not have such a committee, because no oflfice - holder 
sits in Congress. Neither can we organize the House 
under leaders, because prominent men have among us 
little authority, since they are unconnected with the 
executive, and derive no title from the people.^ 
Neither can we create a ruling committee of the 
majority, because this would be disliked as an undemo- 
cratic and tyrannical institution. Hence our only 
course is to divide the unwieldy multitude into small 
bodies capable of dealing with particular subjects. Each 
of them is no doubt powerful in its own sphere, but that 
sphere is so small that no grave harm can result. The 
Acts passed may not be the best possible ; the legislation 
of the year may resemble a patchwork quilt, where each 
piece is diflFerent in colour and texture from the rest. 

1 In England the prime minister and the leader of the Opposition 
(often an ex-prime minister) have been recognized as leaders not only 
by the candidates who at the last preceding general election have declared 
their willingness to support one or other, but also by the rank and file 
of their respective parties. These leaders have thus a sort of right to 
the allegiance of their foUowers, though a right which they may forfeit. In 
America no candidate pledges himself to support a particular congressional 
leader. It would be thought unbecoming in him to do so. His allegiance 
is to the party, and his constituents do not expect him to support any 
given person, however eminent 



2i8 THE NATIONAL GOVERNMENT parti 

But as we do not need much legislation, and as nearly the 
whole field of ordinary private law lies outside the province 
of Congress, the mischief is slighter than you Europeans 
expect. If we made legislation easier, we might have 
too much of it; and in trying to give it the more 
definite character you suggest, we might make it too 
bold and sweeping. Be our present system bad or good, 
it is the only system possible under our Constitution, 
and the fact that it was not directly created by that 
instrument, but has been evolved by the experience of a 
hundred years, shows how strong must be the tendencies 
whose natural working has produced it." 



NOTE TO CHAPTER XV. 

List of Standing Committees of the House in the Fiftieth 
Congress, First Session. (Corrected to Jan. 15, 1888.) 

On Elections ; Ways and Means ; Appropriations ; Judiciary ; 
Banking and Currency; Coinage, Weights and Measures; Com- 
merce ; Rivers and Harbours ; Merchant Marine and Fisheries ; 
Agriculture ; Foreign Affairs ; Military Affairs ; Naval Affairs ; 
Post Office and Post Roads ; Public Lands ; Indian Affairs ; Ter- 
ritories ; Railways and Canals ; Manufactures ; Mines and Mining ; 
Public Buildings and Grounds ; Pacific Railroads ; Levees and 
Improvements of the Mississippi River ; Education ; Labour ; 
Militia ; Patents ; Invalid Pensions ; Pensions ; Claims ; War Claims ; 
Private Land Claims ; District of Columbia ; Revision of the Laws ; 
Expenditures in the State Department; Do., Treasury Depart- 
ment ; Do., War Department ; Do., Navy Department ; Do., 
Post Office Department; Do., Interior Department; Do., Depart- 
ment of Justice ; Do., Public Buildings ; Rules ; Accounts ; Mileage ; 
Library ; Printing ; Enrolled Bills ; Reform in the Civil Service ; 
Election of President, Vice-President, and Representatives; Elev- 
enth Census ; Indian Depredation Claims ; Ventilation and Acoustics ; 
Alcoholic Liquor Traffic. 

There were also in Jan. 1888 seven Select Committees. 



CHAPTER XVI 



CONGRESSIONAL LEGISLATION 



Legislation is more specifically and exclusively the 
business of Congress than it is the business of govern- 
ing parliaments such as those of England, France, and 
Italy. We must therefore, in order to judge of the 
excellence of Congress as a working machine, examine 
the quality of the legislation which it turns out. 

Acts of Congress are of two kinds, public and private. 
Passing by private acts for the present, though they 
occupy a large part of congressional time,^ let us con- 
sider public acts. These are of two kinds, those 
which deal with the law or its administration, and 
those which deal with finance, that is to say, provide 
for the raising and application of revenue. I devote 
this chapter to the former class, and the next to the 
latter. 

There are many points of view from which one may 
regard the work of legislation. I suggest a few only, 
in respect of which the excellence of the work may be 
tested ; and propose to ask : What security do the legis- 
lative methods and habits of Congress ofier for the 
attainment of the following desirable objects ? viz. : — 

^ Some remarks on private bills will be found in Note A to this 
chapter at the end of this volume. 



220 THE NATIONAL GOVERNMENT parti 

1. The excellence of the substance of a bill, i.e. its 
tendency to improve the law and promote the public 
welfare. 

2. The excellence of the form of a bill, i.e. its arrange- 
ment and the scientific precision of its language. 

3. The harmony and consistency of an act with the 
other acts of the same session. 

4. The due examination and sifting in debate of a bill. 

5. The publicity of a bill, i.e. the bringing it to the 
knowledge of the country at large, so that public opinion 
may be fully expressed regarding it. 

6. The honesty and courage of the legislative as- 
sembly in rejecting a bill, however likely to be popular, 
which their judgment disapproves. 

7. The responsibility of some person or body of 
persons for the enactment of a measure, i.e. the fixing 
on the right shoulders of the praise for passing a good, 
the blame for passing a bad, act. 

The criticisms that may be passed on American 
practice under the preceding heads will be made clearer 
by a comparison of English practice. Let us therefore 
first see how English bills and acts stand the tests we 
are to apply to the work of Congress. 

In England public bills fall into two classes, — those 
brought in by the ministry of the day as responsible 
advisers of the sovereign, and those brought in by 
private members. In point of law and in point of form 
there is no difierence between these classes, and the 
only way of ascertaining to which class a given bill 
belongs is by looking to see whether the names on the 
back of it are those of ordinary private members or of 
the official servants of the Crown. ^ Practically there is 

^ If a private member after bringing in a bill accepts office under 
the Crown, custom requires that he should either induce his colleagues 



CHAP. XVI CONGRESSIONAL LEGISLATION 221 



all the difference in the world, because a government 
bill has behind it the responsibility of the ministry, 
and presumably the weight of the majority which 
keeps the ministry in office. The ministry dispose 
of a half or more of the working time of the 
House, and have therefore much greater facilities for 
pushing forward their bills. Nearly all the most im- 
portant bills, which involve large political issues, are 
government bills, so that the hostile critic of a private 
member's bill will sometimes argue that the House 
ought not to permit the member to proceed with it, 
because it is too large for any unofficial hands. This 
premised, we may proceed to the seven points above 
mentioned. 

1. In England, as the more important bills are 
government bills, their policy is sure to have been care- 
fully weighed. The ministry have every motive for care, 
because the fortunes of a first-class bill are their own 
fortunes. If it is rejected, they fall. A specially diffi- 
cult bill is usually framed by a committee of the cabinet, 
and then debated by the cabinet as a whole before it 
appears in Parliament. Minor bills are settled in the 
departments by the parliamentary head with his staff 
of permanent officials. A private member has not 
these advantages : but if he is wise he submits his bill 
before it is printed to three or four judicious friends, 
profits by their criticism, and obtains a promise of theii* 
support. 

2. In England, government bills are prepared by 
the official government draftsmen, two eminent lawyers 
with several assistants, who constitute an office for this 
purpose. Private members who are lawyers often draft 

to take it up, in which case it becomes a government bill, or else 
relinquish the charge of it to some private member. 



222 THE NATIONAL GOVERNMENT parti 

their own bills ; those who are not generally employ a 
barrister. The drafting of government bills has much 
improved of late years, and the faults of form observ- 
able in British Acts are chiefly due to amendments 
made in committee of the whole House, which are often 
prepared and inserted in a hurry. 

3. The harmony of one government bill with others 
of the same session is secured by the care of the official 
draftsmen, as well as by the fact that all emanate from 
one and the same ministry. No such safeguards exist 
in the case of private members' bills, but it is of course 
the duty of the ministry to watch these legislative 
essays, and get Parliament to strike out of any 
one of them whatever is inconsistent with another 
measure passed or intended to be passed in the same 
session. 

4. Difficult and complicated bills which raise no 
political controversy are sometimes referred to a 
select committee, which goes through them and 
reports them as amended to the House. They are 
afterwards considered, and often fully debated, first 
in committee of the Whole, and then by the House 
on the stage of report (i.e. report from committee of the 
Whole to the House). Latterly such bills have begun 
to be referred to what are called Grand Committees, 
i.e. committees of at least fifty appointed in each 
session for the consideration of particular kinds of 
business. Discussion in these committees replaces 
the discussion in committee of the Whole ; but the bills 
come before the House on report for further debate. 
Many bills, however, never go before select or grand 
committees, but are dealt with by the House itself 
in the two last - mentioned stages. While measures 
which excite political feeling or touch any powerful 



CHAP. XVI CONGRESSIONAL LEGISLATION 223 

interest (such as that of landowners or railroads or 
liquor-dealers) are exhaustively debated, others may 
slip through unobserved. The enormous pressure of 
work and the prolixity with which some kinds of busi- 
ness are discussed, involve the hurrying other business 
through with scant consideration. 

5. Except in the case of discussions at unseasonable 
hours, the proceedings of Parliament are so far reported 
in the leading newspapers and commented on by them 
that bills, even those of private members, generally be- 
come known to those whom they may concern. There 
is usually a debate on the second reading, and this debate 
attracts notice. Members often receive from persons 
previously unknown to them suggestions regarding 
pending measures. 

6. A government bill is, by the law of its being, 
exposed to the hostile criticism of the Opposition, who 
have an interest in discrediting the ministry by dis- 
paraging their work. As respects private members' bills, 
it is the undoubted duty of some minister to watch 
them, and to procure their amendment or rejection if he 
finds them faulty. This duty is discharged less faith- 
fully than might be wished, but perhaps as well as can 
be expected from weak human nature, often tempted 
to conciliate a supporter or an "interest" by allowing 
a measure to go through which ought to have been 
stopped.^ Private members are generally alert in watch- 
ing one another's bills ; and the rules of the House of 
Commons enable them to defeat a measure by objecting 
to its progress at certain hours. 

^ Now and then a bill passes wliich sensible men of both parties dis- 
approve, because its advocates are more strenuous than its opponents, 
and the notion that some popular sentiment favours it deters either party 
from resistance. 



224 THE NATIONAL GOVERNMENT parti 

Kesponsibility for everything done in the House 
rests upon the ministry of the day, because they are 
the leaders of the majority. If they allow a private 
member to pass a bad bill, if they stop him when trying 
to pass a good bill, they are in theory no less culpable 
than if they pass a bad bill of their own. Accordingly, 
when the second reading of a measure of any conse- 
quence is moved, it is the duty of some member of the 
ministry to rise, with as little delay as possible, and 
state whether the ministry support it, or oppose it, 
or stand neutral. Standing neutral is, so far as respon- 
sibility to the country goes, practically the same thing 
as supporting. The Opposition, as an organized body, 
are not expected to express their opinion on any bills 
except those of high political import. Needless to say, 
private members are also held strictly responsible for 
the votes they give, these votes being all recorded 
and published next morning. Of course both parties 
claim praise or receive blame from the country in respect 
of their attitude towards bills of moment, and when a 
session has produced few or feeble Acts the Opposition 
charge the Ministry with sloth or incompetence. 

The rules and usages I have described constitute 
valuable aids to legislation, and the quality of English 
and Scottish legislation, take it all and all, is good ; that 
is to say, the statutes are such as public opinion demands, 
and are well drawn for the purposes they aim at. 
The chief complaints against the House of Commons 
as a legislative body ^ are that it is too indulgent to 
tediousness, and that, owing to its vast and multifarious 

^ Of course there are often blemishes of detail in Acts of Parliament, 
which might be removed in a second chamber, did England possess a 
second chamber well qualified for the duty of revision, and wishful to 
discharge it. 



CHAP. XVI CONGRESSIONAL LEGISLATION 225 

business, it leaves serious questions unsettled till they 
have grown more serious, and require remedies more 
violent than might have at first sufficed. 

Let us now apply the same tests to the legislation 
of Congress. What follows refers primarily to the House, 
but is largely true of the Senate, because in the Senate 
also the committees play an important part. 

The first difference which strikes us between Parlia- 
ment and Congress is that in neither House of Congress 
are there any government bills. All measures are brought 
in by private members because all members are private. 
The nearest approach to the government bill of England 
is one brought in by a leading member of the majority 
in pursuance of a resolution taken in the congres- 
sional caucus of that majority. This seldom happens. 
One must therefore compare the ordinary congres- 
sional bill with the English private member's bill rather 
than with a government measure, and expect to find 
it marked by the faults that mark the former class. 
The second difference is that whereas in England 
the criticism and amendment of a bill takes place in 
committee of the Whole, in the House of Kepresenta- 
tives it takes place in a small committee of six- 
teen members or less, usually of eleven. In the 
Senate also the committees do most of the work, but 
the committee of the Whole occasionally debates a bill 
pretty fiiUy. 

Premising these dissimilarities, I go to the seven 
points before mentioned. 

1. The excellence of the substance of a bill intro- 
duced in Congress depends entirely on the wisdom and 
care of its introducer. He may, if self-distrustful, take 
counsel with his political allies respecting it. But 
there is no security for its representing any opinion or 

VOL. I Q 



226 THE NATIONAL GOVERNMENT parti 

knowledge but his own. It may affect the manage- 
ment of an executive department, but the introducing 
member does not command departmental information, 
and will, if the bill passes, have nothing to do with the 
carrying out of its provisions. On the other hand, the 
officials of the government cannot submit bills ; and if 
they find a congressman willing to do so for them, must 
leave the advocacy and conduct of the measure entirely 
in his hands. 

2. The drafting of a measure depends on the pains 
taken and skill exerted by its author. Senate bills are 
usually well drafted because many senators are experi- 
enced lawyers : House bills are often crude and obscure. 
There does not exist either among the executive depart- 
ments or in connection with Congress, any legal office 
charged with the duty of preparing bills, or of seeing that 
the form in which they pass is technically satisfactory. 

3. The only security for the consistency of the 
various measures of the same session is to be found in 
the fact that those which affect the same matter ought 
to be referred to the same committee. However, it 
often happens that there are two or more conmiittees 
whose spheres of jurisdiction overlap, so that of two 
bills handling cognate matters, one may go to Com- 
mittee A and the other to Committee B. Should 
different views of policy prevail in these two bodies, 
they may report to the House bills containing 
mutually repugnant provisions. There is nothing 
except unusual vigilance on the part of some member 
interested, to prevent both bills from passing. That 
mischief from this cause is not serious arises from the 
fact that out of the multitude of bills introduced, few 
are reported and still fewer become law. 

4. The function of a committee of either House of 



CHAP. XVI CONGRESSIONAL LEGISLA TION 227 

Congress extends not merely to the sifting and amend- 
ing of the bills referred to it, but to practically 
re-drawing them, if the committee desires any legis- 
lation, or rejecting them by omitting to report them 
till near the end of the session if it thinks no legis- 
lation needed. Every committee is in fact a small 
bureau of legislation for the matters lying within its 
jurisdiction. It has for this purpose the advantage of 
time, of the right to take evidence, and of the fact 
that some of its members have been selected from 
their knowledge of or interest in the topics it has to 
deal with. On the other hand, it suffers from the non- 
publication of its debates, and from the tendency of 
all small and secret bodies to intrigues and compromises, 
compromises in which general principles of policy are 
sacrificed to personal feeling or selfish interest. Bills 
which go in black or white come out gray. The mem- 
ber who has introduced a bill may not have a seat on 
the committee, and may therefore be unable to protect 
his offspring. Other members of the House, masters 
of the subject but not members of the committee, can 
only be heard as witnesses. Although therefore there 
are full opportunities for the discussion of the bill by 
the committee, it often emerges in an unsatisfactory 
form, or is quietly suppressed, because there is no im- 
petus of the general opinion of the House or the public 
to push it through. When the bill comes back to the 
House the chairman or other reporting member of the 
committee generally moves the previous question, after 
which no amendment can be offered. Debate ceases 
and the bill is promptly passed or lost. In the Senate 
there is a better chance of discussion, for the Senate, 
having more time and fewer speakers, can review to 
some real purpose the findings of its committees. 



228 THE NATIONAL GOVERNMENT parti 

5. As there is no debate on the introduction or on 
the second reading of a bill, the public is not necessarily- 
apprised of the measures which are before Congress. An 
important measure is of course watched by the news- 
papers and so becomes known : minor measures go 
unnoticed. ' 

6. The general good-nature of Americans, and the 
tendency of members of their legislatures to oblige one 
another by doing reciprocal good turns, dispose people 
to let any bill go through which does not injure the 
interest of a party or of a person. Such good-nature 
counts for less in a committee, because a committee has 
its own views and gives effect to them. But in the 
House there are few views, though much impatience. 
The House has no time to weigh the merits of a bill 
reported back to it. Members have never heard it 
debated. They know no more of what passed in the 
committee than the report tells them. If the measure 
is palpably opposed to their party tenets,* the majority 
will reject it : if no party question arises they usually 
adopt the view of the committee. 

7. What has been said already will have shown 
that except as regards bills of great importance, or 
directly involving party issues, there can be little effective 
responsibility for legislation. The member who brings 
in a bill is not responsible, because the committee 
generally alters his bill. The committee is little 
observed and the details of w^hat passed within the 
four walls of its room are not published. The great 
parties in the House are but faintly responsible, because 
their leaders are not bound to express an opinion, 
and a vote taken on a non-partisan bill is seldom a 
strict party vote. Individual members are no doubt 
responsible, and a member who votes against a popular 



CHAP. XVI CONGRESSIONAL LEGISLA TION 229 

measure, one for instance favoured by the working men, 
will suffer for it/ But the responsibility of individuals, 
most of them insignificant, half of them destined to 
vanish, like snow-flakes in a river, at the next election, 
gives little security to the people. 

The best defence that can be advanced for this 
system is that it has been naturally evolved as a means 
of avoiding worse mischiefs. It is really a plan for 
legislating by a number of commissions. Each commis- 
sion, receiving suggestions in the shape of bills, taking 
evidence upon them, and sifting them in debate, frames 
its measures and lays them before the House in a shape 
which seems designed to make amendment in details 
needless, while leaving the general policy to be accepted 
or rejected by a simple vote of the whole body. In 
this last respect the plan may be compared with that 
of the Komans during the Kepublic, whose general as- 
sembly of the people approved or disapproved of a bill 
as a whole, without power of amendment, a plan which 
had the advantage of making laws clear and simple. 
At Kome, however, bills could be proposed only by a 
magistrate upon his official responsibility ; they were 
therefore comparatively few and sure to be carefully 
drawn. The members of American legislative com- 
missions have no special training, no official experience, 
little praise or blame to look for, and no means of 
securino: that the overburdened House will ever come 
to a vote on their proposals. There is no more agree- 
ment between the views of one commission and another 
than what may result from the majority in both belong- 

^ Tlie member who has taken this course is the worse oflP, because he 
rarely has an opportunity of explaining by a speech in the House his 
reason for his vote, and is therefore liable to the imputation of having 
been " got at " by capitalists. 



230 THE NA TIONAL GO VERNMENT part i 

ing to the same party. Hence, as Mr. Wilson observes, 
"The legislation of a session does not represent the 
policy of either the majority or the minority : it is 
simply an aggregate of the bills recommended by com- 
mittees composed of members from both sides of the 
House, and it is known to be usually not the work of 
the majority men upon the committees, but compromise 
conclusions bearing some shade or tinge of each of the 
variously coloured opinions and wishes of the com- 
mittee men of both parties. Most of the measures 
which originate with the committees are framed with 
a view of securing their easy passage by giving 
them as neutral and inoffensive a character as is pos- 
sible. The manifest object is to draw them to the 
liking of all factions. Hence neither the failure nor 
the success of any policy inaugurated by one of the 
committees can fairly be charged to the account of 
either party. "^ 

Add to the conditions above described the fact that 
the House in its few months of life has not time to deal 
with one-twentieth of the twelve thousand bills which are 
thrown upon it, that it therefore drops the enormous 
majority unconsidered, though some of the best may be 
in this majority, and passes many of those which it 
does pass by a suspension of the rules which leaves 
everything to a single vote,^ and the marvel comes to 
be, not that legislation is faulty, but that an intensely 
practical people tolerates such defective machinery. 
Some reasons may be suggested tending to explain this 
phenomenon. 

Legislation is a difficult business in all free countries, 

^ Congresnonal Government, pp. 99-101. 

2 This can be done by a two-thirds vote during the last six days of a 
session and on the first and third Mondays of each month. 



CHAP. XVI CONGRESSIONAL LEGISLATION 231 

and perhaps more difficult the more free the country is, 
because the discordant voices are more numerous and 
less under control. America has sometimes sacrificed 
practical convenience to her dislike to authority. 

The Americans surpass aU other nations in then- 
power of making the best of bad conditions, getting the 
largest results out of scanty materials or rough methods. 
Many things in that country work better than they 
ought to work, so to speak, or could work in any other 
country, because the people are shrewdly alert in mini- 
mizing such mischiefs as arise from their own haste 
or heedlessness, and have a great capacity for self-help. 

Aware that they have this gift, the Americans 
are content to leave their political machinery un- 
reformed. Persons who propose comprehensive reforms 
are suspected as theorists and crotchet-mongers. The 
national inventiveness, active in the spheres of 
mechanics and money - making, spends little of its 
force on the details of governmental methods. 

The want of legislation on topics where legisla- 
tion is needed breeds fewer evils than would follow in 
countries like England or France where Parliament is 
the only law-making body. The powers of Congress 
are limited to comparatively few subjects : its failures 
do not touch the general well-being of the people, nor 
the healthy administration of the ordinary law. 

The faults of bills passed by the House are often 
cured by the Senate, where discussion is more leisurely 
and thorough. The committee system produces in 
that body also some of the same flabbiness and colour- 
lessness in bills passed. But the blunders, whether 
in substance or of form, of the one chamber are fre- 
quently corrected by the other, and many bad bills 
fail owing to a division of opinion between the Houses. 



232 THE NATIONAL GOVERNMENT parti 

The President's veto kills oflF some vicious measures. 
He does not trouble himself about defects of form ; but 
where a bill seems to him opposed to sound policy, 
it is his constitutional duty to disapprove it, and to 
throw on Congress the responsibility of passing it 
" over his veto " by a two-thirds vote. A good Presi- 
dent accepts this responsibility. 



. ..Li^ 



CHAPTER XVII 



CONGRESSIONAL FINANCE 



Finance is a sufficiently distinct and important depart- 
ment of legislation to need a chapter to itself ; nor does 
any legislature devote a larger proportion of its time 
than does Congress to the consideration of financial bills. 
These are of two kinds : those which raise revenue by 
taxation, and those which direct the application of the 
public funds to the various expenses of the government. 
At present Congress raises all the revenue it requires 
by indirect taxation/ and chiefly by duties of customs 
and excise; so taxing bills are practically tariff" bills, 
the excise duties being comparatively little varied from 
year to year. 

The method of passing both kinds of bills is un- 
like that of most European countries. In England, 
with which, of course, America can be most easily com- 
pared, although both the levying and the spending of 
money are absolutely under the control of the House of 
Commons, the House of Commons originates no pro- 
posal for either. It never either grants money or 
orders the raising of money except at the request of the 
Crown. Once a year the Chancellor of the Exchequer 

^ During the Civil War, direct taxes were levied ; and many other kinds 
of taxes besides those mentioned in the text have been imposed at 
different times. 



234 THE NATIONAL GOVERNMENT parti 

lays before it, together with a full statement of the 
revenue and expenditure of the past twelve months, 
estimates of the expenditure for the coming twelve 
months, and suggestions for the means of meeting 
that expenditure by taxation or by borrowing. He 
embodies these suggestions in resolutions on which, 
when the House has accepted them, bills are grounded 
imposing certain taxes or authorizing the raising of 
a loan. The House may of course amend the bills 
in details, but no private member ever proposes a 
taxing bill, for it is no concern of any one's except the 
ministry to fill the public treasury.^ The estimates 
prepared by the several administrative departments 
(Army, Navy, Office of Works, Foreign Office, etc.), 
and revised by the Treasury, specify the items of 
proposed expenditure with much particularity, and fill 
three or more bulky volumes, which are delivered to 
every member of the House. These estimates are de- 
bated in committee of the whole House, explanations 
being required from the ministers who represent the 
Treasury and the several departments, and are passed in 
a long succession of separate votes.^ Members may 
propose to reduce any particular grants, but not to 

^ Of course a private member may carry a resolution involving 
additional expenditure ; but even this is at variance with the stricter 
constitutional doctrine and practice ; a doctrine regarded by the statesmen 
of the last generation as extremely valuable, because it restrains the pro- 
pensity of a legislature to yield to demands emanating from sections 
or classes, which may entail heavy and perhaps unprofitable charges on 
the country. See the observations of the First Lord of the Treasury 
in the House of Commons, March 22, 1886. 

2 Complaints are sometimes made that these votes are not discussed 
with sufficient fulness and minuteness, and it has been proposed to create 
several special standing committees to examine each class of them more 
closely. This might be a desirable addition. Three such committees have 
recently been appointed. But even under the present system there are 
many useful financial debates, by which some abuses are checked and in 
which valuable suggestions are made. 



CHAP. XVII CONGRESSIONAL FINANCE 235 

increase them ; no money is ever voted for the public 
service except that which the Crown has asked for 
through its ministers. The Crown must never ask for 
more than it actually needs, and hence the ministerial 
proposals for taxation are carefully calculated to raise 
just so much money as will cover the estimated ex- 
penses for the coming year. It is reckoned almost as 
great a fault in the finance minister if he has needlessly 
overtaxed the people, as if he has so undertaxed them as 
to be left with a deficit. If at the end of a year a 
substantial surplus appears, the taxation for next year is 
reduced in proportion, supposing that the expenditure 
remains the same. Every credit granted by Parliament 
expires of itself at the end of the financial year. 

In the United States the Secretary of the Treasury 
sends annually to Congress a report containing a state- 
ment of the national income and expenditure and of the 
condition of the public debt, together with remarks on 
the system of taxation and suggestions for its improve- 
ment. He also sends what is called his Annual Letter, 
enclosing the estimates, framed by the various depart- 
ments, of the sums needed for the public services of the 
United States during the coming year. So- far the 
Secretary is like a European finance minister, except 
that he communicates with the chamber on paper in- 
stead of making his statement and proposals orally. 
But here the resemblance stops. Everything that 
remains in the way of financial legislation is done solf^^y 
by Congress and its committees, the executive having 
no further hand in the matter. 

The business of raising money belongs to one com- 
mittee only, the standing committee of Ways and 
Means, consisting of eleven members. Its chairman is 
always a leading man in the party which commands a 



236 THE NATIONAL GOVERNMENT parti 

majority in the House. This committee prepares and 
reports to the House the bills needed for imposing or 
continuing the various customs duties, excise duties, 
etc. The report of the Secretary has been referred by 
the House to this committee, but the latter does not 
necessarily base its bills upon or in any way regard that 
report. Neither does it in preparing them start from 
an estimate of the sums needed to support the public 
service. It does not, because it cannot : for it does not 
know what grants for the public service will be proposed 
by the spending committees, since the estimates sub- 
mitted in the Secretary's letter furnish no trustworthy 
basis for a guess. It does not, for the further reason 
that the primary object of customs duties has for 
many years past been not the raising of revenue, but 
the protection of American industries by subjecting 
foreign products to a very high tariff*. At present there 
are enormous duties on many classes of raw materials, 
and on nearly all classes of manufactured goods, in- 
cluding even books and works of art. This tariff* 
brings in an income far exceeding the current needs 
of the government. Nearly two -thirds of the war 
debt having been paid off, the fixed charges have 
shrunk to one -third of what they were when the 
present tariff was imposed, yet this tariff* remains 
with few modifications, and surpluses accumulate year 
after year in the national treasury. The committee of 
Ways and Means has therefore no motive for adapting 
taxation to expenditure. The former will be always 
in excess so long as the protective tariff stands, and the 
protective tariff stands for commercial or political reasons 
unconnected with national finance.^ 

^ Hitherto there has always been a means of getting rid of surpluses 
by paying off debt ; but as financiers are now beginning to hold that a 



CHAP. XVII CONGRESSIONAL FINANCE 237 

When the revenue bills come to be debated in com- 
mittee of the whole House similar causes prevent them 
from being scrutinized from the purely financial point of 
view. Debate turns on those items of the tariff which 
involve gain or loss to influential groups. Little inquiry 
is made as to the amount needed and the adaptation of 
the bills to produce that amount and no more. It is 
the same with ways and means bills in the Senate. 
Communications need not pass between the committees 
of either House and the Treasury. The person most 
responsible, the person who most nearly corresponds to 
an English Chancellor of the Exchequer, or a French 
Minister of Finance, is the chairman of the House com- 
mittee of Ways and Means. But he stands in no official 
relation to the Treasury, and is not required to exchange 
a word or a letter with its staff". Neither, of course, can 
he count on a majority in the House. Though he is a 
leading man he is not a leader, i.e, he has no claim on the 
votes of his own party, many of whom may (as happened 
to Mr. Morrison in 1886) disapprove of and cause the 
defeat of his proposals. That gentleman was chairman 
of the committee of Ways and Means, and perhaps, 
after the Speaker, the most considerable person in the 
Democratic majority. But he was beaten in his at- 
tempted reform of the tariff". 

The business of spending money belongs primarily 
to two standing committees, the old committee on 

certain portion of the debt ought to be kept on foot for banking and 
currency purposes, much discussion has arisen as to how the accumulating 
balance shall be disposed of. Hence the issues of commercial policy, 
issues affecting the great manufacturing industries, dwarf questions of 
revenue proper. The committee considers not which is the best and 
cheapest means of raising a given sum, but how the tariff will affect 
protected industries. Since there is no fear of a deficit, it drafts its bills 
with no view to the raising of a particular simi, and does not care to 
calculate the exact income the taxes will produce. 



238 THE NATIONAL GOVERNMENT parti 

Appropriations and the new committee on Kivers and 
Harbours, created in 1883. The committee on appro- 
priations starts from, but does not adopt, the estimates 
sent in by the Secretary of the Treasury, for the appro- 
priation bills it prepares usually make large and often 
reckless reductions in these estimates. The Kivers and 
Harbours committee proposes grants of money for what 
are called "internal improvements," nominally in aid 
of navigation, but practically in order to turn a 
stream of public money into the State or States where 
each " improvement " is to be executed. More money 
is wasted in this way than what the parsimony of the 
Appropriations committee can save. There are several 
committees on the departments, such as those on the 
navy, the army, the judiciary. There is the com- 
mittee on pensions, a source of infinite waste. ^ Each of 
these proposes grants of money, not knowing nor heeding 
what is being proposed by other committees, and guided 
by the executive no further than the members choose. 
All the expenditures recommended must be met by 
appropriation bills, but into their propriety the Appro- 
priations committee cannot inquire. 

Every revenue bill must, of course, come before the 
House ; and the House, whatever else it may neglect, never 
neglects the discussion of taxation and money grants. 
These are discussed as fully as the pressure of work 
permits, and are often added to by the insertion of fi'esh 
items, which members interested in getting money voted 
for a particular purpose or locality suggest. These bills 
then go to the Senate, which forthwith refers them to its 
committees. The Senate conmiittee on finance deals 
with revenue-raising bills ; the committee on appropria- 
tions with supply bills. Both sets then come before the 

1 The expenditure on pensions was in 1887 $75,000,000 (£15,000,000). 



CHAP. XVII CONGRESSIONAL FINANCE 239 

whole Senate. Although it cannot initiate appropriation 
bills, the Senate has long ago made good its claim to 
amend them, and does so without stint, adding new 
items and often greatly raising the total of the grants. 
When the bills go back to the House, the House usually 
rejects the amendments ; the Senate adheres to them, 
and a Conference committee is appointed, consisting of 
three senators and three members of the House, by 
which a compromise is settled, hastily and in secret, and 
accepted, generally in the last days of the session, by a 
hard-pressed but reluctant House. Even as enlarged by 
this committee, the supply voted is usually found inade- 
quate, so a Deficiency bill is introduced in the following 
session, including a second series of grants to the 
departments. 

The European reader will ask how all this is or 
can be done by Congress without frequent communi- 
cation from or to the executive government. There 
arc such communications, for the ministers, anxious 
to secure appropriations adequate for their respective 
departments, talk to the chairmen and appear before 
the committees to give evidence as to departmental 
needs. But in Congress itself they never now appear, 
nor does Congress look to them for guidance as 
in the early days it looked to Hamilton and Gallatin. 
If the House cuts down their estimates they turn to 
the Senate and beg it to restore the omitted items ; if 
the Senate fail them, the only resource left is a Deficiency 
bill in the next session. If one department is so starved 
as to be unable to do its work, while another obtains 
lavish grants which invite jobbery or waste, it is the 
committees, not the executive, whom the people ought 
to blame. If, by a system of log-rolling, vast sums 
are wasted upon useless public works, no minister has 



240 THE NATIONAL GOVERNMENT parti 

any opportunity to interfere, any right to protest. A 
minister cannot, as in England, bring Congress to reason 
by a threat of resignation, for it would make no diflfer- 
ence to Congress if the whole cabinet were to resign.^ 

What I have stated may be summarized as follows : 

There is practically no connection between the 
policy of revenue raising and the policy of revenue 
spending, for these are left to diflferent committees whose 
views may be opposed, and the majority in the House 
has no recognized leaders to remark the discrepancies or 
make one or other view prevail. In the forty-ninth 
Congress (1885-1887) a strong free-trader was chairman 
of the tax-proposing committee on Ways and Means, 
while a strong protectionist was chairman of the spend- 
ing committee on Appropriations. 

There is no relation between the amount proposed 
to be spent in any one year, and the amount proposed 
to be raised. But for the fact that the high tariflF pro- 
duces a large annual surplus, a financial breakdown 
would speedily ensue. 

The knowledge and experience of the permanent 
officials either as regards the productivity of taxes, 
and the incidental benefits or losses attending their 
collection, or as regards the nature of various kinds of 
expenditure and their comparative utility, can be turned 
to account only by interrogating these officials before 
the committees. Their views are not stated in the 
House by a parliamentary chief, nor tested in debate by 
arguments addressed to him which he must there and 
then answer. 

Little check exists on the tendency of members to 
deplete the public treasury by securing grants for their 

^ Unless of course Congress should be so clearly in the wrong that the 
people were roused to vigorous disapproval of its conduct 



CHAP. XVII CONGRESSIONAL FINANCE 241 

friends or constituents, or by putting through financial 
jobs for which they are to receive some private considera- 
tion. If either the majority of the committee on 
Appropriations or the House itself suspects a job, the 
grant proposed may be rejected. But it is the duty 
of no one in particular to scent out a job, and to defeat 
it by public exposure. 

The nation becomes so puzzled by a financial policy 
varying from year to year, and controlled by no 
responsible leaders, as to feel diminished interest in 
congressional discussions and diminished confidence in 
Congress.^ 

The result on the national finance is unfortunate. 
A thoughtful American publicist remarks, " So long as 
the debit side of the national account is managed by 
one set of men, and the credit side by another set, both 
sets working separately and in secret without public 
responsibility, and without intervention on the part 

^ " The noteworthy fact that even the most thorough debates in Con- 
gress fail to awaken any genuine or active interest in the ipinds of the 
people has had its most striking illustrations in the course of our financial 
legislation, for though the discussions which have taken place in Congress 
upon financial questions have been so frequent, so protracted, and so 
thorough, engrossing a large part of the time of the House on their every 
recurrence, they seem in almost every instance to have made scarcely any 
impression upon the public mind. The Coinage Act of 1873, by which 
silver was demonetized, had been before the country many years ere it 
reached adoption, having been time and again considered by committees 
of Congress, time and again printed and discussed in one shape or another, 
and having finally gained acceptance apparently by sheer persistence and 
importunity. The Resumption Act of 1875, too, had had a like career 
of repeated considerations by committees, repeated printings and a full 
4iscussion by Congress, and yet when the Bland Silver BiU of 1878 was 
on its way through the mills of legislation, some of the most prominent 
newspapers of the country declared with confidence that the Resumption 
Act had been passed inconsiderately and in haste ; and several members 
of Congress had previously complained that the demonetization scheme of 
1873 had been pushed surreptitiously through the courses of its passage, 
Congress having been tricked into accepting it, doing it scarcely knew 
what." — Woodrow Wilson, CongressioncU Government^ p. 148. 

VOL. I R 



242 THE NATIONAL GOVERNMENT part i 

of the executive official who is nominally responsible ; 
so long as these sets, being composed largely of new men 
every two years, give no attention to business except 
when Congress is in session, and thus spend in prepar- 
ing plans the whole time which ought to be spent in 
public discussion of plans already matured, so that an 
immense budget is rushed through without discussion in 
a week or ten days — just so long the finances will go 
from bad to worse, no matter by what name you call 
the party in power. No other nation on earth attempts 
such a thing, or could attempt it without soon coming to 
grief, our salvation thus far consisting in an enormous in- 
come, with practically no drain for military expenditure." 
It may be replied to this criticism that the enormous 
income, added to the fact that the tarifi* is imposed for 
protection rather than for revenue, is not only the 
salvation of the United States Government under the 
present system, but also the cause of that system. 
Were the tarifi* framed with a view to revenue only, 
no higher taxes would be imposed than the public 
service required, and a better method of balancing the 
public accounts would follow. This is true. The present 
state of things is evidently exceptional. America is 
the only country in the world whose difficulty is not 
to raise money but to spend it.^ Still, as our critic 
remarks, Congress is contracting lax habits, and ought 
to change them. 

1 The Report of the Secretary of the Treasury for 1887 states the 
surplus in the treasury on Ist December of that year at J5 5,000,000, 
and estimates the surplus for the financial year ending 30th June 1888 
under the law then in force at $140,000,000. For twenty-two years 
there have been surpluses, the smallest of $2,344,000 in 1874, the 
largest of $145,543,000 in 1882. The surplus taxation for the year 
ending 30th June 1888 was $113,000,000. The total estimated revenue 
of 1887-88 was $383,000,000. The receipte from customs alone were 
greater by $24,000,000 in 1887 than in 1886. 



CHAP. XVII CONGRESSIONAL FINANCE 243 

Considering these faults, and considering that it is 
by preaching an adoption of British methods that the 
wisest American reformers are trying to cure the defects 
in the financial administration of Congress, it is odd 
that English publicists should at the same moment be 
suggesting the American system as a model for imita- 
tion by the House of Commons. The present British 
plan is probably open to the charge of not securing 
a full parliamentary control either of the expenses or of 
the administrative methods of the spending departments. 
But the arrangements of Congress seem, so far as an 
English observer can judge, less conducive to economy 
as well as to efficiency than those of Parliament. 

How comes it, if all this be true, that the finances 
of America are so flourishing, and in particular that 
the war debt has been paid ofi" with such regularity 
and speed that from $3,000,000,000 (£600,000,000) 
in 1865, it had sunk to less than $1,200,000,000 
(£240,000,000) in 1887 ? Does not so brilliant a result 
speak of a continuously wise and skilful management of 
the national revenue ? 

The paying off" of the debt seems to be due to the 
following causes : — 

To the prosperity of the country which, with one 
interval of trade depression, has for twenty years been 
developing its amazing natural resources so fast as to 
produce an amount of wealth which is not only greater, 
but more widely diff'used through the population, than 
in any other part of the world. 

To the spending habits of the people, who allow 
themselves luxuries such as the masses enjoy in no 
other country, and therefore pay more than any other 
people in the way of indirect taxation. The fact that 
Federal revenue is raised by duties of customs and excise 



244 THE NATIONAL GOVERNMENT parti 

makes the people far less sensible of the pressure of 
taxation than they would be did they pay directly. 

To the absence of the military and naval charges 
which press so heavily on European states. 

To the maintenance of an exceedingly high tariflf at 
the instance of numerous interested persons who have 
obtained the public ear and can influence Congress. 
Without expressing any opinion as to whether the 
policy of Protection be or be not sound, one may observe 
that to its acceptance, more perhaps than to any 
deliberate conviction that the debt ought to be paid off*, 
has been due the continuance of a tariff* whose huge 
and constant surpluses have enabled the debt to be 
reduced. 

Europeans, admiring and envying the rapidity with 
which the war debt has been reduced, have been dis- 
posed to credit the Americans with brilliant financial 
skill. That, however, which was really admirable in the 
conduct of the American people was not their judgment 
in selecting particular methods for raising money, but 
their readiness to submit during and immediately after 
the war to unprecedentedly heavy taxation. The in- 
terests (real or supposed) of the manufacturing classes 
have caused the maintenance of the tariff* then imposed ; 
nature, by giving the people a spending power which 
has rendered the tariff marvellously productive, has 
done the rest. 

Under the system of congressional finance here 
described America wastes millions annually. But her 
wealth is so great, her revenue so elastic, that she is not 
sensible of the loss. She has the glorious privilege of 
youth, the privilege of committing errors without suffer- 
ing from their consequences. 



CHAPTER XVIII 

THE RELATIONS OP THE TWO HOUSES 

The creation by the Constitution of 1789 of two 
chambers in the United States, in place of the one 
chamber which existed under the Confederation, has been 
usually ascribed by Europeans to mere imitation of 
England ; and one learned writer goes so far as to sug- 
gest that if England had possessed three chambers, like 
the States General of France, or four, like the Diet of 
Sweden, a crop of three-chambered or four-chambered 
legislatures would, in obedience to the example of 
happy and successful England, have sprung up over the 
world. There were, however, better reasons than defer- 
ence to English precedents to justify the division of 
Congress into two houses and no more ; and so many 
indubitable instances of such a deference may be quoted 
that there is no need to hunt for others. Not to dwell 
upon the fact that there were two chambers in all but 
two ^ of the thirteen original States, the Convention of 
1787 had two solid motives for fixing on this number, 
a motive of principle and theory, a motive of immediate 
expediency. 

The chief advantage of dividing a legislature into 

^ Pennsylvania and Georgia ; the former of which added a Senate in 
1 789, the latter in 1 790. See post, Chapter XXXIX. on State Legislatures. 



246 THE NATIONAL GOVERNMENT parti 

two branches is that the one may check the haste and 
correct the mistakes of the other. This advantage is 
purchased at the price of some delay, and of the weak- 
ness which results from a splitting up of authority. If 
a legislature be constituted of three or more branches, 
the advantage is scarcely increased, the delay and weak- 
ness are immensely aggravated. Two chambers can be 
made to work together in a way almost impossible to 
more than two. As the proverb says, " Two's company, 
three's none." If there be three chambers, two are sure 
to intrigue and likely to combine against the third. 
The difficulties of carrying a measure without sacrificing 
its unity of principle, of fixing responsibility, of secur- 
ing the watchful attention of the public, serious with two 
chambers, become enormous with three or more. 

To these considerations there was added the practical 
ground that the division of Congress into two houses 
supplied a means of settling the dispute which raged 
between the small and the large States. The latter 
contended for a representation of the States in Con- 
gress proportioned to their respective populations, 
the former for their equal representation as sovereign 
commonwealths. Both were satisfied by the plan 
which created two chambers in one of which the former 
principle, in the other of which the latter principle was 
recognized. The country remained a federation in re- 
spect of the Senate, it became a nation in respect of the 
House : there was no occasion for a third chamber. 

The respective characters of the two bodies are 
wholly unlike those of the so-called upper and lower 
chambers of Europe. In Europe there is always a 
difference of political complexion, generally resting on a 
difference in personal composition. There the upper 
chamber represents the aristocracy of the country, or 



CHAP. XVIII RELATIONS OF THE TWO HOUSES 247 

the men of wealth, or the high officials, or the influence 
of the Crown and Court ; while the lower chamber re- 
presents the multitude. Between the Senate and the 
House there is no such diflFerence. Both equally repre- 
sent the people, the whole people, and nothing but the 
people. The individual members come from the same 
classes of the community ; and though there are more 
rich men (in proportion to numbers) in the Senate than 
in the House, the influence of capital is not markedly 
greater. Both have been formed by the same social 
influences : and the social pretensions of a senator 
expire with his term of office. Both are possessed by 
the same ideas, governed by the same sentiments, 
equally conscious of their dependence on public opinion. 
The one has never been, like the English House of 
Commons, a popular pet, the other never, like the 
English House of Lords, a popular bugbear. 

What is perhaps stranger, the two branches of Con- 
gress have not exhibited that contrast of feeling and 
policy which might be expected from the different 
methods by which they are chosen. In the House the 
large States are predominant : nine out of thirty-eight 
(less than one-fourth) return an absolute majority of 
the 325 representatives. In the Senate these same 
nine States have only eighteen members out of seventy- 
six, less than a fourth of the whole. In other words, 
these nine States are more than sixteen times as power- 
ful in the House as they are in the Senate. But as the 
House has never been the organ of the large States, nor 
prone to act in their interest, so neither has the Senate 
been the stronghold of the small States, for American 
politics have never turned upon an antagonism between 
these two sets of commonwealths. Questions relating to 
States' rights and the greater or less extension of the 



248 THE NATIONAL GOVERNMENT parti 

powers of the national government have played a leading 
part in the history of the Union. But although small 
States might be supposed to be specially zealous for 
States' rights, the tendency to uphold them has been 
no stronger in the Senate than in the House. In one 
phase of the slavery struggle the Senate happened to be 
under the control of the slaveholders while the House 
was not ; and then of course the Senate championed the 
sovereignty of the States. But this attitude was purely 
accidental, and disappeared with its transitory cause. 

The real diflferences between the two bodies have 
been indicated in speaking of the Senate. They are 
due to the smaller size of the latter, to the somewhat 
superior capacity of its members, to the habits which its 
executive functions form in individual senators, and have 
formed in the whole body. 

In Europe, where the question as to the utility of 
second chambers is actively canvassed, two objections 
are made to them, one that they deplete the first or 
popular chamber of able men, the other that they induce 
deadlocks and consequent stoppage of the wheels of 
government. On both arguments light may be ex- 
pected from American experience. 

Although the Senate does draw ofi" from the 
House many of its ablest men, it is not clear, para- 
doxical as the observation may appear, that the House 
would be much the better for retaining those men. 
The faults of the House are mainly due, not to 
want of talent among individuals, but to its defective 
methods, and especially to the absence of leadership. 
These are faults which the addition of twenty or thirty 
able men would not cure. Some of the committees 
would be stronger, and so far the work would be better 
done. But the House as a whole would not (assuming 



CHAP. XVIII RELATIONS OF THE TWO HOUSES 249 

its rules and usages to remain what they are now) be 
distinctly a greater power in the country. On the 
other hand, the merits of the Senate are largely due to 
the fact that it trains to higher efficiency the ability 
which it has drawn from the House, and gives that 
ability a sphere in which it can develop with better 
results. Were the Senate and the House thrown into 
one, the country would lose more, I think much more, 
by losing the Senate than it would gain by improving 
the House, for the united body would have the qualities 
of the House and not those of the Senate. 

Collisions between the two Houses are frequent. 
Each is jealous and combative. Each is prone to alter 
the bills that come from the other ; and the Senate in 
particular knocks about remorselessly those favourite 
children of the House, the appropriation bills. The fact 
that one House has passed a bill goes but a little way 
in inducing the other to pass it; the Senate would 
reject twenty House bills as readily as one. Dead- 
locks, however, disagreements over serious issues which 
stop the machinery of administration, are not common. 
They rarely cause excitement or alarm outside Wash- 
ington, because the country, remembering previous 
instances, feels sure they will be adjusted, and knows 
that either House would yield were it unmistakably 
condemned by public opinion. The executive govern- 
ment goes on undisturbed, and the worst that can 
happen is the loss of a bill which may be passed four 
months later. Even as between the two bodies there 
is no great bitterness in these conflicts, because the 
causes of quarrel do not lie deep. Sometimes it is 
self-esteem that is involved, the sensitive self-esteem 
of an assembly. Sometimes one or other House is 
playing for a party advantage. That intensity which 



250 THE NATIONAL GOVERNMENT parti 

in the similar contests of Europe arises from class feel- 
ing is absent, because there is no class distinction 
between the two American chambers. Thus the 
country seems to be watching a fencing match rather 
than a combat d outrance. 

I dwell upon this substantial identity of character 
in the Senate and the House because it explains the 
fact, surprising to a European, that two perfectly co- 
ordinate authorities, neither of which has any more 
right than its rival to claim to speak for the whole 
nation, manage to get along together. Their quarrels 
are professional and personal rather than conflicts of 
adverse principles. The two bodies are not hostile 
elements in the nation, striving for supremacy, but 
servants of the same master, whose word of rebuke will 
quieten them. 

It must, however, be also remembered that in such 
countries as England, France, and Italy, the popular 
chamber stands in very close relation with the executive 
government, which it has virtually installed and which 
it supports. A conflict between the two chambers in 
such countries is therefore a conflict to which the 
executive is a party, involving issues which may be of 
the extremest urgency ; and this naturally intensifies 
the struggle. For the House of Lords in England or 
the Senate in Italy to resist a demand for legislation 
made by the ministry, who are responsible for the 
defence and peace of the country, and backed by the 
representative House, is a more serious matter than 
almost any collision between the Senate and the House 
can be in America.^ 

^ Of course a case may be imagined in which the President should 
ask for legislation, as Lincoln did during the war, and one House of 
Congress should grant, the other refuse, the Acts demanded. But such 



CHAP. XVIII RELATIONS OF THE TWO HOUSES 251 

The United States is the only great country in the 
world in which the two Houses are really equal and co- 
ordinate. Such a system could hardly work, and 
therefore could not last, if the executive were the 
creature of either or of both, nor unless both were in 
close touch with the sovereign people. 

When each chamber persists in its own view, the 
regular proceeding is to appoint a committee of confer- 
ence, consisting of three members of the Senate and 
three of the House. These six meet in secret, and gener- 
ally settle matters by a compromise, which enables each 
side to retire with honour. When appropriations are 
involved, a sum intermediate between the smaller one 
which the House proposes to grant and the larger one 
desired by the Senate is adopted. If no compromise 
can be arranged, the conflict continues till one side 
yields or it ends by an adjournment, which of course 
involves the failure of the measure disagreed upon. 
The House at one time tried to coerce the Senate 
into submission by adding " riders," as they are called, 
to appropriation bills, i.e. annexing or "tacking "(to 
use the English expression) pieces of general legislation 
to bills granting sums of money. This puts the Senate 
in the dilemma of either accepting the unwelcome 
rider, or rejecting the whole bill, and thereby with- 
holding from the executive the funds it needs. This 
happened in 1855 and 1856. However, the Senate stood 
firm, and the House gave way. The device had pre- 
viously been attempted (in 1849) by the Senate in tack- 
ing a pro-slavery provision to an appropriation bill which 
it was returning to the House, and it was revived by 
both Houses against President Andrew Johnson in 1867. 

cases are less likely to occur in America than in Europe under the 
Cabinet svstem. 



252 THE NATIONAL GOVERNMENT parti 

In a contest the Senate usually, though not in- 
variably, gets the better of the House. It is smaller, 
and can therefore more easily keep its majority to- 
gether ; its members are more experienced ; and it has 
the great advantage of being permanent, whereas the 
House is a transient body. The Senate can hold out, 
because if it does not get its way at once against the 
House", it may do so when a new House comes up to 
Washington. The House cannot aflFord to wait, be- 
cause the hour of its own dissolution is at hand. 
Besides, while the House does not know the Senate 
from inside, the Senate, many of whose members 
have sat in the House, knows all the "ins and outs" 
of its rival, can gauge its strength and play upon its 
weakness. 



CHAPTER XIX 

GENERAL OBSERVATIONS ON CONGRESS 

AiTER this inquiry into the composition and working 
of each branch of Congress, it remains for me "to make 
some observations which apply to both Houses, and 
which may tend to indicate the features that distinguish 
them from the representative assemblies of Europe. The 
English reader must bear in mind three points which, in 
following the details of the last few chapters, he may 
have forgotten. The first is that Congress is not like 
the Parliaments of England, France, and Italy, a sover- 
eign assembly, but is subject to the Constitution, which 
only the people can change. The second is, that it 
neither appoints nor dismisses the executive govern- 
ment, which springs directly from popular election. 
The third is, that its sphere of legislative action is 
limited by the existence of thirty-eight governments in 
the several States, whose authority is just as well based 
as its own, and cannot be curtailed by it. 

I. The choice of members of Congress is locally 
limited by law and by custom. Under the Constitution 
every representative and every senator must when 
elected be an inhabitant of the State whence he is 
elected. Moreover, State law has in many and custom 
practically in all States, established that a representative 



254 THE NATIONAL GOVERNMENT parti 

must be resident in the congressional district which 
elects him/ The only exceptions to this practice occur 
in large cities where occasionally a man is chosen who 
lives in a different district of the city from that which 
returns him ; but such exceptions are extremely rare. 
This restriction surprises a European, who thinks it 
must be found highly inconvenient both to candidates, 
as restricting their field of choice in looking for a con- 
stituency, and to constituencies, as excluding persons, 
however eminent, who do not reside in their midst. To 
Americans, however, it seems so obviously reasonable 
that I found very few persons, even in the best educated 
classes, who would admit its policy to be disputable. 
In what are we to seek the causes of this opinion ? 

Firstly. In the existence of States, originally separate 
political communities, still for many purposes independ- 
ent, and accustomed to consider the inhabitant of another 
State as almost a foreigner. A New Yorker, Pennsyl- 
vanians would say, owes allegiance to New York ; he 
cannot feel and think as a citizen of Pennsylvania, and 
cannot therefore properly represent Pennsylvanian in- 
terests. This sentiment has spread by a sort of sym- 
pathy, this reasoning has been applied by a sort of 
analogy, to the counties, the cities, the electoral districts 
of the State itself. State feeling has fostered local 
feeling ; the locality deems no man a fit representative 
who has not by residence in its limits, and by making 
it his political home, the place where he exercises his 
civic rights, become soaked with its own local sentiment. 

^ The best legal authorities hold that a provision of this kind is 
invalid, because State law has no i>ower to narrow the qualifications for 
a Federal representative prescribed by the Constitution of the Unite<l 
States. And Congixiss would probably so hold if the question arose in a 
case brought before it as to a disputed election. So far as I have been 
able to ascertain, the point has never arisen for determination. 



CHAP. XIX GENERAL OBSERVATIONS ON CONGRESS 255 

Secondly. Much of the interest felt in the proceed- 
ings of Congress relates to the raising and spending of 
money. Changes in the tariflF may aflfect the industries 
of a locality ; or a locality may petition for an appropri- 
ation of public funds to some local public work, the 
making of a harbour, or the improvement of the navi- 
gation of a river. In both cases it is thought that no 
one but an inhabitant can duly comprehend the needs 
or zealously advocate the demands of a neighbourhood. 

Thirdly. Inasmuch as no high qualities of statesman- 
ship are expected from a congressman, a district would 
think it a slur to be told that it ought to look beyond 
its own borders for a representative ; and as the post is 
a paid one, the people feel that a good thing ought to 
be kept for one of themselves rather than thrown away 
on a stranger. It is by local political work, organizing, 
canvassing, and haranguing, that a party is kept going : 
and this work must be rewarded. 

A perusal of the chapter of the Federalist^ which 
argues that one representative for 30,000 inhabitants 
will sufficiently satisfy republican needs, suggests 
another reflection. The writer refers to some who 
held a numerous representation to be a democratic 
institution, because it enabled every small district 
to make its voice heard in the national Congress. 
Such representation then existed in the State legis- 
latures. Evidently the habits of the people were 
formed by these State legislatures, in which it was a 
matter of course that the people of each township or 
city sent one of themselves to the assembly of the State. 
When they came to return members to Congress, they 
followed the same practice. A stranger had no means 
of making himself known to them and would not think 
of offering himself. That the habits of England are 



256 THE NATIONAL GOVERNMENT parti 

different may be due, so far as the eighteenth century 
is concerned, to the practice of borough -mongering, 
under which candidates unconnected with the place 
were sent down by some influential person, or bought 
the seat from the corrupt corporation or the limited 
body of freemen. Thus the notion that a stranger 
might do well enough for a borough grew up, while in 
counties it remained, till 1885, a maxim that a candi- 
date ought to own land in the county^ — the old law 
required a freehold qualification somewhere — or ought 
to live in, or ought at the very least (as I once heard a 
candidate, whose house lay just outside the county for 
which he was standing, allege on his own behalf) to look 
into the county from his window while shaving in the 
morning.^ The English practice might thus seem to be 

1 The old law (9 Anne, c. 6) required aU members to possess a free- 
hold qualification somewhere. All property qualifications were abolished 
by statute in 1858. 

2 The English habit of allowing a man to stand for a place with which 
he is personally unconnected would doubtless be favoured by the fact 
that many ministers are necessarily members of the House of Commons. 
The inconvenience of excluding a man from the service of the nation 
because he could not secure his return in the place of his residence would 
be unendurable. No such reason exists in America, because ministers 
cannot be members of Congress. In France, Germany, and Italy the 
practice seems to resemble that of England, t>. many members sit for 
places where they do not reside, though of course a candidate residing 
in the place he stands for has a certain advantage. 

It is remarkable that the original English practice required the 
member to be a resident of the county or borough which returned him 
to Parliament. This is said to be a requirement at conmion law (wit- 
ness the words " de comitatu tuo " in the writ for the election addressed 
to the sheriff); and was expressly enacted by the statute 1 Henry V. 
cap. 1. But already in the time of Elizabeth the requirement was not 
enforced ; and in 1681 Lord Chief-Justice Pemberton ruled that "little 
regard was to be had to that ancient statute 1 Henry V. forasmuch as 
common practice hath' been ever since to the contrary." The statute was 
repealed by 14 Geo. III. cap. 50. — See Anson, Law and Custom of the 
C&tistitution^ vol. i. p. 83 ; Stubbs, Oonstit. Hist^ voL iiL p. 424. Dr. 
Stubbs observes that the object of requiring residence in early times 
was to secure "that the House of Commons should be a really repre- 
sentative body." Mr. Heam {GovemjMTiJt of England) suggests that 



CHAP. XIX GENERAL OBSERVATIONS ON CONGRESS 257 

an exception due to special causes, and the American 
practice that which is natural to a free country, where 
local self-government is fully developed and rooted in 
the habits of the people. It is from their local govern- 
ment that the political ideas of the American people 
have been formed : and they have applied to their 
State assemblies and their national assembly the customs 
which grew up in the smaller area.^ 

These are the best explanations I can give of a 
phenomenon which strikes Europeans all the more be- 
cause it exists among a population more unsettled and 
migratory than any in the Old World. But they leave 
me still surprised at this strength of local feeling, a 
feeling not less marked in the new regions of the Far 
West than in the venerable commonwealths of Massa- 
chusetts and Virginia. The most significant fact about 
the practice in America is that one seldom hears it 
there commented on as a defect of the political system. 
Fierce as is the light of criticism which beats upon 
every part of that system, this point, which at once 
strikes the European as specially weak, remains uncen- 
sured, because assumed to be part of the order of nature. 

Its results are unfortunate. So far as the restriction 

tlie requirement had to be dropped because it was hard to find country 
gentlemen (or indeed burgesses) possessing the legal knowledge and states- 
manship which the constitutional struggles of the sixteenth and seven- 
teenth centuries demanded. 

^ When President Garfield was one of the leaders of the House of 
Eepresentatives it happened that his return for the district in which he re- 
sided became doubtful, owing to the strength of the Democratic party there. 
One of his friends (to whom I owe the anecdote), anxious to make sure 
that he should somehow be returned to the House, went into the adjoining 
district to sound the Kepublican voters there as to the propriety of run- 
ning Mr. Garfield for their constituency. They laughed at the notion, 
" Why, he don't live in our deestrict." I have heard of a case in which 
a member of Congress having after his election gone to live in a neigh- 
bouring district, was thereupon compelled by the pressure of public 
opinion to resign his seat. 

VOL. I S 



258 THE NATIONAL GOVERNMENT parti 

to residents in a State is concerned it is intelligible. 
The senator was — to some extent is still — a sort of 
ambassador from his State. He is chosen by the legis- 
lature or collective authority of his State. He cannot 
well be a citizen of one State and represent another. 
Even a representative in the House from one State who 
lived in another might be perplexed by a divided allegi- 
ance, though there are groups of States, such as those 
of the north-west, whose great industrial interests are 
substantially the same. But what reason can there be 
for preventing a man resident in one part of a State 
from representing another part, a Philadelphian, for 
instance, from being returned for Pittsburg, or a Bos- 
tonian for Lenox in the west of Massachusetts? In 
England it is not found that a member is less active or 
successful in urging the local interests of his constituency 
because he does not live there. He is often more 
successful, because more personally influential or per- 
suasive than any resident whom the constituency could 
supply ; and in case of a conflict of interests he always 
feels his efibrts to be owing first to his constituents, and 
not to the place in which he happens to reside. 

The mischief is twofold. Inferior men are returned, 
because there are many parts of the country which do 
not grow statesmen, where nobody, or at any rate 
nobody desiring to enter Congress, is to be found above 
a moderate level of political capacity. And men of 
marked ability and zeal are prevented from forcing their 
way in. Such men are produced chiefly in the great 
cities of the older States. There is not room enough 
there for nearly all of them, but no other doors to 
Congress are open. Boston, New York, Philadelphia, 
Baltimore, could ' furnish six or eight times as many 
good members as there are seats in these cities. As 



CHAP. XIX GENERAL OBSERVATIONS ON CONGRESS 259 

such men cannot enter from their place of residence, 
they do not enter at all, and the nation is deprived of 
the benefit of their services. Careers are moreover 
interrupted. A promising politician may lose his seat 
in his own district through some fluctuation of opinion, 
or perhaps because he has ofiended the local wire-pullers 
by too much independence. Since he cannot find a seat 
elsewhere, as would happen in England, he is stranded ; 
his political life is closed, while other young men inclined 
to independence take warning from his fate. Changes 
in the State laws would not remove the evil, for the 
habit of choosing none but local men is rooted so deeply 
that it would probably long survive the abolition of a 
restrictive law, and it is just as strong in States where 
no such law exists.^ 

11. Every senator and representative receives a 
salary at present fixed at $5000 (£1000) per annum, 
besides an allowance (called mileage) of 20 cents (lOd.) 
per mile for travelling expenses to and from Washington, 
and $125 (£25) for stationery. The salary is looked upon 
as a matter of course. It was not introduced for the sake 
of enabling working men to be returned as members, but 
on the general theory that all public work ought to be 
paid for.2 The reasons for it are stronger than in England 
or France, because the distance to Washington from most 
parts of the United States is so great, and the attendance 
required there so continuous, that a man cannot attend 
to his profession or business while sitting in Congress. 
If he loses his livelihood in serving the community, the 

^ In Maryland, a State almost divided into two parts by Chesapeake 
Bay, it is the invariable practice that one of the two senators should 
be chosen from the residents east of the bay, the other from those of the 
western shore. 

2 Benjamin Franklin argued strongly in the Convention of 1787 
against this theory, but found little support. See his remarkable speech in 
Mr. John Bigelow's Life of Franklin^ voL iii. p. 389. 



26o THE NATIONAL GOVERNMENT parti 

community ought to compensate him, not to add that 
the class of persons whose private means put them 
above the need of a lucrative calling, or of compensa- 
tion for interrupting it, is comparatively small even 
now, and hardly existed when the Constitution was 
framed; Cynics defend the payment of congressmen on 
another ground, viz. that " they would steal worse if they 
didn't get it," and would make politics, as Napoleon made 
war, support itself. Be the thing bad or good, it is at 
any rate necessary, so that no one talks of abolishing it. 
For that reason its existence furnishes no argument for 
its introduction into a small country with a large leisured 
and wealthy class. In fact, the conditions of European 
countries are so diflferent from those of America that one 
must not cite American experience either for or against 
the remuneration of legislative work. I do not believe 
that the practice works ill by preventing good men from 
entering politics, for they feel no more delicacy in accept- 
ing their $5000 than an English duke does in drawing 
his salary as a secretary of state. It may strengthen the 
tendency of members to regard themselves as mere 
delegates, but that tendency has other and deeper roots. 
It contributes to keep up a class of professional poli- 
ticians, for the salary, though small in comparison with 
the incomes earned by successful merchants or lawyers, is 
a prize to men of the class whence professional politicians 
mostly come. But those English writers who describe it 
as the formative cause of that class are mistaken. That 
class would have existed had members not been paid, 
would continue to exist if payment were withdrawn. On 
the other hand, the benefit which the English advocates 
of paid legislators dilate on, viz. the introduction of a 
large number of representative working men, has hither- 
to been little desired and nowise secured. Few such 



CHAP. XIX GENERAL OBSERVATIONS ON CONGRESS 261 

persons appear as candidates in America, and until 
recently the working class has not deemed itself, nor 
acted as, a distinct body with special interests.^ 

In 1873 Congress passed an act increasing many 
official salaries, and among others those of senators and 
representatives, which it raised from $5000 to $7500 
(£1500). All the increases were to take eflfect for the 
future only, except that of congressional salaries, which 
was made retroactive. This unblushing appropriation 
by Congress of nearly $200,000 to themselves roused so 
much indignation that the act, except with relation to 
the salaries of Federal judges, was repealed by the next 
Congress. It is known as the *' back-pay grab." 

III. A congressman's tenure of his place is usually 
short. Senators are sometimes returned for two, three, 
or even four successive terms by the legislatures of their 
States, although it may befall even the best of them 
to be thrown out by a change in the balance of parties, 
or by the intrigues of an opponent. But a member 
of the House can seldom feel safe in the saddle. If 
he is so eminent as to be necessary to his party, or if 
he maintains intimate relations with the leading local 
wire-pullers of his district, he may in the eastern, 
middle, and southern States hold his ground for three 
or four Congresses, i.e. for six or eight years. Very 
few do more than this. In the West a member is 
extremely lucky if he does even this. Out there a seat 
is regarded as a good thing which ought to go round. 

^ In Victoria (Australia) members of the popular house receive a 
salary of £300 a year. I understand that this has had so far no con- 
siderable effect in enabling working men to enter the assembly. In 
Australia, however, a representative seems to be expected to subscribe to 
local objects within his constituency, which is not the case in America, 
and is every day less the case in England. In France and Germany 
representatives are paid. In Italy they receive no salary, but a free pass 
over the railroads. 



262 THE NATIONAL GOVERNMENT parti 

• 

It has a salary. It sends a man, free of expense, for 
two winters and springs to Washington and lets him 
see something of the fine world there, where he rubs 
shoulders with ambassadors from Europe. Local leaders 
cast sheep's eyes at the seat, and make more or less 
open bargains between themselves as to the order in 
which they shall enjoy it. So far from its being, as 
in England, a reason for re-electing a man that he has 
been a member already, it is a reason for passing him 
by, and giving somebody else a turn. Rotation in 
office, dear to the Democrats of Jefierson's school a 
century ago, still charms the less educated, who see in 
it a recognition of equality, and have no sense of "the 
value of special knowledge or training. They like it 
for the same reason that the democrats of Athens liked 
the choice of magistrates by lot. It is a recognition 
and application of equality. An ambitious congress- 
man is therefore forced to think day and night of his re- 
nomination, and to secure it not only by procuring, if he 
can, grants from the Federal treasury for local purposes, 
and places for the relatives and friends of the local 
wire-pullers who control the nominating conventions, 
but also by sedulously "nursing" the constituency 
during the vacations. No habit could more efifectually 
discourage noble ambition or check the growth of a class 
of accomplished statesmen. There are few walks of life 
in which experience counts for more than it does in 
parliamentary politics. It is an education in itself, an 
education in which the quick-witted western American 
would make rapid progress were he suflFered to remain long 
enough at Washington. At present he is not suflFered, 
for, as observed above, nearly one-half of each succes- 
sive house consists of new men, while the old members 
are too much harassed by the trouble of procuring their 



CHAP. XIX GENERAL OBSERVATIONS ON CONGRESS 263 

re-election to have time or motive for the serious study 
of political problems. This is what comes of the doctrine 
that a member ought to be absolutely dependent on his 
constituents, and of the notion that politics is neither 
a science, nor an art, nor even an occupation, like farm- 
ing or store-keeping, in which one learns by experience, 
but a thing which comes by nature, and for which one 
man of common sense is as fit as another. 

IV. The last-mentioned evil is aggravated by the 
short duration of a Congress. Short as it seems, the 
two years term was warmly opposed, when the Con- 
stitution was framed, as being too long.^ Thie con- 
stitutions of the several States, framed when they shook 
ofi* the supremacy of the British Crown, all fixed one 
year, except the ultra-democratic Connecticut and Khode 
Island, where under the colonial charters a legislature met 
every six months, and South Carolina, which had fixed 
two years. So essential to republicanism was this prin- 
ciple deemed, that the maxim " where annual elections 
end tyranny begins " had passed into a proverb ;^ and the 
authors of the Federalist were obliged to argue that the 
limited authority of Congress, watched by the executive 
on one side, and the State legislatures on the other, would 
prevent so long a period as two years from proving 
dangerous to liberty, while it was needed in order to 
enable the members to master the laws and understand 

^ In the Massachusetts Convention of 1788, when this question was 
being discussed, " General Thomson then broke out into the following 
pathetic apostrophe, * my country, never give up your annual elections : 
young men, never give up your jewel.' He apologized for his zeaL" — 
Elliot's Debates, voL ii. p. 16. 

2 The whole subject is discussed with acuteness and judgment in the 
51st and 5 2d numbers of the Federalist, numbers whose authorship is 
variously attributed to Hamilton and to Madison. In England the dura- 
tion of parliaments was at one time (and may perhaps be again) matter of 
active controversy. One of the five points of the " People's Charter " of 
1848 was the restriction of their duration to one year. 



264 THE NATIONAL GOVERNMENT parti 

the conditions of different parts of the Union. At 
present the two years term is justified on the ground 
that it furnishes a proper check on the President. The 
Congress elected in the autumn of 1884 at the same 
time as the President, meets in December 1885, while 
another, elected in 1886, meets in 1887, and thus covers 
the later part of his four years term. Thus the people 
can, if they please, express disapproval of the policy 
which he has so far followed. One is also told that 
these frequent elections are necessary to keep up popular 
interest in current politics, nor do some fail to hint that 
the temptations to jobbing would overcome the virtue 
of members who had a longer term before them. 
Where American opinion is unanimous, it would be 
presumptuous for a stranger to dissent. Yet the 
remark may be permitted that the dangers originally 
feared have proved chimerical. There is no country 
whose representatives are more dependent on popular 
opinion, more ready to trim their sails to the least 
breath of it. The public acts, the votes, and speeches 
of a member from Oregon or Texas can be more closely 
watched by his constituents than those of a Virginian 
member could be watched in 1789.^ And as the fre- 
quency of elections involves inexperienced members, the 
efficiency of Congress suffers. 

V. The numbers of the two American house* 
seem small to a European when compared on the one 
hand with the population of the country, on the other 
with the practice of European States. The Senate has 
76 members against the British House of Lords with 
about 560, and the French Senate with 300. The House 
has 325 against the British House of Commons with 

^ Of course his conduct in committee is rarely known, but I doubt 
whether the shortness of the term makes him more scrupulous. 



CHAP. XIX GENERAL OBSERVATIONS ON CONGRESS 265 

670, and the French and Italian Chambers with 584 and 
508 respectively. 

The Americans, however, doubt whether both their 
Houses have not already become too large. They began 
with 26 in the Senate, 65 in the House, numbers 
then censured as too small, but which worked well, and 
gave less encouragement to idle talk and vain display 
than the crowded halls of to-day. The proportion of 
representatives to inhabitants, originally 1 to 30,000, 
is now 1 to 154,000, having constantly fallen as the 
population increased. The inclination of wise men is to 
stop further increase when the number of 400 has been 
reached, for they perceive that the House already suffers 
from disorganization, and fear that a much larger one 
would prove unmanageable.^ So much depends on the 

^ There is force in the following observations which I copy from the 
54th and 57th numbers of the Federalist: — "A certain number at least 
seems necessary to secure the benefits of free consultation and discussion, and 
to guard against too easy a combination for improper purposes ; as on the 
other ha^d, the number ought to be kept" within a certain limit in order to 
avoid the confusion and intemperance of a multitude. In all very numer- 
ous assemblies, of whatever characters composed, passion never fails to wrest 
the sceptre from reason. Had every Athenian citizen been a Socrates, every 
Athenian assembly would still have been a mob. ... In all legislative 
assemblies, the greater the number comprising them may be, the fewer 
will be the men who will in fact direct their proceedings. The larger 
the number, the greater will be the proportion of members of limited in- 
formation and of weak capacities. Now it is precisely on characters of 
this description that the eloquence and address of the few are known to 
act with all their force. In the ancient republics where the whole body 
of the people assembled in person, a single orator, or an artful statesman, 
was generally seen to rule with as complete a sway as if a sceptre had been 
placed in his single hand. On the same principle the more multitudinous 
a representative assembly may be rendered, the more it will partake of the 
infirmities incident to collective meetings of the people. Ignorance will 
be the dupe of cunning, and passion the slave of sophistry and declamation. 
The people can never err more than in supposing that by multiplying their 
representatives beyond a certain limit they strengthen the barrier against 
the government of a few.' Experience will for ever admonish them that, 
on the contrary, after securing a certain number for the purposes of safety, of 
local information, and of diffusing sympathy vrith the whole society, they will 
counteract their own views by every addition to their representatives." 



266 THE NATIONAL GOVERNMENT parti 

particular circumstances of each country that no general 
rule can be laid down as to the size of representative 
assemblies, and the experience of one nation is of no 
great value for another. So far as general principles go, 
a student of politics will be disposed to think that as 
the American Chamber ought not to be raised much 
further, so the British House of Commons ought to be 
rather reduced than increased.^ 

VL American congressmen are more assiduous in 
their attendance than the members of most European 
legislatures. The great majority not only remain 
steadily at Washington through the session, but are 
usually to be found in the Capitol, often in their 
Chamber itself, while a sitting lasts. There is therefore 
comparatively little trouble in making a quorum,- 
though the quorum consists of one half in each House, 
whereas in England the House of Lords, whose quorum 
is three, has usually less than thirty peers present, and 
the House of Commons finds a difficulty, through many 
private members* days and on government days from 
eight till ten o'clock p.m., in making up its modest 
quorum of forty.^ This requirement of a high quorum, 
which is prescribed in the Constitution, has doubt- 
less helped to secure a good attendance. Other 
causes are the distance from Washington of the resi- 
dences of most members, so that it is not worth 
while to take the journey home for a short sojourn, 

^ The House of Commons would be much less manageable than it is did 
the whole of its 670 members attend. Even now, the number present 
during a debate rarely exceeds 450, though of course as many as 600 some- 
times vote in great di\'i8ions. There is sitting space on the floor for only 360. 

2 Though sometimes the sergeant-at-arms is sent round Washington 
with a carriage to fetch members down from their residences to the Capitol. 

3 Oliver Cromwell's House of 360 members, including 30 from Scot- 
land and 30 from Ireland, had a quorum of 60. See the Articles of 
December 1653 in Parliamentary History, vol. iii. p. 1417. 



CHAP. XIX GENERAL OBSERVATIONS ON CONGRESS 267 

and the fact that very few attempt to carry on 
any regular business or profession while the session 
lasts. Those who are lawyers, or merchants, or manu- 
facturers, leave their work to partners ; but many are 
politicians and nothing else. In Washington, a city 
without commerce or manufactures, political or semi- 
political intrigue is the only gainful occupation possible ; 
for the Supreme Court practice employs only a few lead- 
ing barristers. The more democratic a country is, so 
much the more regular is the attendance, so much closer 
the attention to the requests of constituents which a 
member is expected to render. Every extension of the 
suffrage in England has been followed not only by a 
change in the character of the House of Commons, but 
by an increase in the numbers usually present, and in 
the eagerness of members to defer to every wish of 
those who have returned them.^ Apart from that pain- 
ful duty of finding places for constituents which con- 
sumes so much of a congressman's time, his duties are not 
heavier than those of a member of the English Parlia- 
ment who desires to keep abreast of current questions. 
The sittings are neither so long nor so late as those of 
the House of Commons ; the questions that come up 
not so multifarious, the blue books to be read less 
numerous, the correspondence (except about places) less 
troublesome. The position of senator is more onerous 
than that of a member of the House, not only because 
his whole State, and not merely a district, has a direct 
claim upon him, but also because, as one of a smaller 

1 Before the Reform Bill of 1832 there were rarely more than 200 
members present in the House of Commons, and it usually sat for two or 
three hours only in each day. I remember to have been told of a member 
for Hampshire about 1820, who sat for thirteen years, being in perfect 
health, and was only thrice in the House. Nor was this deemed a very 
singular case. 



268 THE NATIONAL GOVERNMENT parti 

body, he incurs a larger individual responsibility, and 
sits upon two or more committees instead of on one only. 
VII. The reasons which make a political career un- 
attractive to most Americans will deserve to be con- 
sidered in a later chapter. Here I will only remark 
that the want of opportunities for distinction in Con- 
gress is one of them. It takes a new member at least a 
session to learn the procedure of the House. Full dress 
debates are rare, newspaper reports of speeches delivered 
are curt and little read. The most serious work is done 
in committees ; it is not known to the world, and much 
of it results in nothing, because many bills which 
a committee has considered are perhaps never even 
voted on by the House. A place on a good House 
committee is to be obtained by favour, and a high- 
spirited man may shrink from applying for it to the 
Speaker. Ability, tact, and industry make their way in 
the long run in Congress, as they do everyivhere else. 
But in Congress there is, for most men, no long run. 
Only very strong local influence, or some remarkable 
party service rendered, will enable a member to keep 
his seat through two or three successive congresses. 
Nowhere therefore does the zeal of a young politician 
sooner wax cold than in the House of Kepresentatives. 
Unfruitful toil, the toil of turning a crank which does 
nothing but register its own turnings, or of wTiting 
contributions which an editor steadily rejects, is of all 
things the most disheartening. It is more disheartening 
than the non-requital of merit ; for that at least spares 
the self-respect of the sufierer. Now toil for the public 
is usually unfruitful in the House of Representatives, 
indeed in all Houses. But toil for the pecuniary 
interests of one's constituents and friends is fruitful, for 
it obliges people, it wins the reputation of energy and 



CHAP. XIX GENERAL OBSERVATIONS ON CONGRESS 269 

smartness, it has the promise not only of a re-nomination, 
but of a possible seat in the Senate. Now a seat in the 
Senate is the highest ambition of the congressman. 
Power, fame, perhaps even riches, sit upon that pinnacle. 
But the thin spun life is usually slit before the fair 
guerdon has been found. When I first went to America, 
I used to ask the ablest and most ambitious of 
the friends I made among young men whether they 
looked forward to entering Congress. Out of many 
scarcely one seemed drawn towards the career which 
those who have won success at the universities of 
England naturally look forward to.^ Presently I 
came to understand their attitude, and to feel that the 
probable disappointments and vexations of a life in Con- 
gress so far outweighed its attractions that nothing but 
a strong sense of public duty would induce a man of 
fine tastes and high talents to adopt it. Law, educa- 
tion, literature, the higher walks of commerce, finance, 
or railway work, ofier a better prospect of usefulness, 
enjoyment, or distinction. 

Inside Washington, the representative is dwarfed by 
the senator and the Federal judges. Outside Washing- 
ton he enjoys no great social consideration.^ His opinion 
is not quoted with respect. He seems to move about 
under a prima facie suspicion of being a jobber, and to 
feel that the burden of proof lies on him to show that 

1 Although young Englishmen seem less drawn to parliamentary life 
now than they were twenty or thirty years ago. 

* A few years ago an eminent Englishman, not then a member of 
the House of Commons, visiting one of the colleges for women in New 
England, and wishing to know something of the social standing of the 
students, remarked, " I suppose you have a good many young ladies here 
belonging to the best families, daughters of members of Congress and so 
forth ? " The question excited so much amusement that it was repeated 
to me months afterwards not only as an instance of English ignorance but 
as an excellent joke. 



270 THE NATIONAL GOVERNMENT parti 

the current jests on this topic do not apply to him. 
Rich men therefore do not seek, as in England, to enter 
the legislature in order that they may enter society. 
They will get no entree which they could not have 
secured otherwise. Nor is there any opportunity for 
the exercise of those social influences which tell upon 
members, and still more upon members' wives and 
daughters, in European legislatures. It may of course 
be worth while to " capture " a particular senator, and 
for that purpose to begin by capturing his wife. But 
the salon plays no sensible part in American public life. 

The country does not go to Congress to look for its 
presidential candidates as England looks to Parliament 
for its prime ministers. The opportunities by which a 
man can win distinction there are few. He does not 
make himself familiar to the eye and ear of the 
people. Congress, in short, is not a focus of political 
life as are the legislatures of France, Italy, and England. 
This has always been so, and is no less so now than 
formerly. Although Congress has become more power- 
ful against the several States than it was formerly, 
though it has extended its arms in every direction, and 
encroached upon the executive, it has not become more 
interesting to the people, it has not strengthened its 
hold on their respect and affection. 

VIIL Neither in the Senate nor in the House are 
there any recognized leaders. There is no ministry, no ex- 
ministry leading an opposition, no chieftains at the head 
of definite groups who follow their lead, as the Irish 
Nationalist members in the British Parliament follow Mr. 
ParneH, and a large section of the Left in the French 
chamber follow M. Clemenceau. In other words, no 
regular means exist for securing either that members 
shall be apprised of the approach of an important 



CHAP. XIX GENERAL OBSERVATIONS ON CONGRESS 271 



division, or that they shall vote in that division in a 
particular way. 

To any one familiar with the methods of the English 
parliament this seems incomprehensible. How, he asks, 
can business go on at all, how can the party make itself 
felt as a party with neither leader nor Whips ? 

I have mentioned the Whips. Let me say a word on 
this vital, yet even in England little appreciated, part 
of the machinery of constitutional government. Each 
party in the House of Commons has, besides its leaders, a 
member of the House nominated by the chief leader as 
his aide-de-camp, and called the whipper-in, or, for 
shortness, the whip. The whip's duties are (1) to inform 
every member belonging to the party when an important 
division may be expected, and if he sees the member in 
or about the House, to keep him there until the division 
is called ; (2) to direct the members of his own party 
how to vote ; (3) to obtain pairs for them if they cannot 
be present to vote ; (4) to '* tell," i.e. count the members 
in every party division ; (5) to *' keep touch " of opinion 
within the party, and convey to the leader a faithful 
'impression of that opinion, from which the latter can 
judge how far he may count on the support of his whole 
party in any course he proposes to take. A member in 
doubt how he shall vote on a question with regard to 
which he has no opinion of his own, goes to the whip 
for counsel. A member who without grave cause stays 
away unpaired from an important division to which 
the whip has duly summoned him is guilty of a misde- 
meanour only less flagrant than that of voting against 
his party. A ministerial whip is further bound to '* keep 
a house," i.e. to secure that when government business is 
being considered there shall always be a quorum of 
members present, and of course also to keep a majority. 



272 THE NATIONAL GOVERNMENT parti 

z.e. to have within reach a number of supporters sufl&- 
cient to give the ministry a majority on any ministerial 
division.^ Without the constant presence and activity 
of the ministerial whip the wheels of government could 
not go on for a day, because the ministry would be 
exposed to the risk of casual defeats which would destroy 
their credit and might involve their resignation. Simi- 
larly the Opposition, and any third or fourth party, find 
it necessary to have a whip, because it is only thus that 
they can act as a party, guide their supporters, and 
bring their full strength to bear on a division. Hence 
when a new party is formed, its first act, that by which 
it realizes and proclaims its existence, is to name a whip, 
to whom its adherents may go for counsel, and who may 
in turn receive their suggestions as to the proper strategy 
for the party to adopt.^ So essential are these ofl&cers to 
the discipline of English parliamentary armies that an 
English politician's first question when he sees Congress 
is, *' Where are the whips ? " his next, " How in the 
world do you get on without them ? " 

The answer to this question is threefold. Whips are 
not so necessary at Washington as at Westminster. A 

^ That which was at one time the chief function of the ministerial 
whip, viz. to pay members for the votes they gave in support of the 
government, has been extinct for about a century. He is still, however, 
the recognized organ for handling questions of political patronage, and is 
therefore called the Patronage Secretary to the Treasury. People who want 
places for their friends, or titles for themselves, still address their requests 
to him, which he communicates to the prime minister with his opinion as 
to whether the applicant's party services justify the request Nowadays 
this patronage has no great political importance. 

2 Even parties formed with a view to particular, and probably transitory 
issues, such as that of the English Anti-Home-Rule Libeitils in the House 
of Commons at this moment (1888), appoint one or more of their members 
as whips, because they could not otherwise act with that effect which only 
habitual concert gives. Each party has its whips in the House of Lords 
also, but as divisions there have less political significance their functions 
are less important 



CHAP. XIX GENERAL OBSERVATIONS ON CONGRESS 273 

sort of substitute for them has been devised. Congress 
does suffer from the want of them, that is, it suffers 
from the inadequacy of the substituted device. 

A division in Congress has not the importance it has 
in the House of Commons. There it may throw out 
the ministry. In Congress it never does more than 
aflSrm or negative some particular bill or resolution. 
Even a division in the Senate which involves the rejec- 
tion of a treaty or of an appointment to some great office, 
does not disturb the tenure of the executive. Hence 
it is not essential to the majority that its full strength 
should be always at hand, nor has a minority party any 
great prize set before it as the result of a successful vote. 

Questions, however, arise in which some large party 
interest is involved. There may be a bill by which the 
party means to carry out its main views of policy or 
perhaps to curry' favour with the people, or a resolution 
whereby it hopes to damage a hostile executive. In 
such cases it is important to bring up every vote. 
Accordingly a meeting of the party is convened, called a 
senatorial caucus or congressional [i.e. House) caucus (as 
the case may be).^ The attitude to be assumed by the 
party is debated with closed doors, and a vote taken as 
to the course to be adopted. By this vote every mem- 
ber of the party is deemed bound, just as he would be 
in England by the request of the leader conveyed 
through the whip. Disobedience cannot be punished 
in Congress itself, except of course by social penalties ; 
but it endangers the seat of the too independent mem- 

^ At the beginniDg of a session each party in the Senate and in the 
House elects a chairman of the party caucus ; and it is the duty of this 
person to convoke a caucus of his party when the need arises. An ex- 
perienced senator told me that the Senate caucus of his party used to meet 
on an average twice a month, the House caucus less frequently. General 
meetings of a party in Parliament are much less common in England. 

VOL. I T 



274 THE NATIONAL GOVERNMENT parti 

ber, for the party managers at Washington will com- 
municate with the party managers in his district, and 
the latter will probably refuse to re-nominate him 
at the next election. The most important caucus of a 
Congress is that held at the opening to select the party 
candidate for the speakership, selection by the majority 
being of course equivalent to election. As the views 
and tendencies of the Speaker determine the composi- 
tion of the committees, and thereby the course of legis- 
lation, his selection is a matter of supreme importance, 
and is preceded by weeks of intrigue and canvassing. 

This process of " going into caucus " is the regular 
American substitute for recognized leadership, and has 
the advantage of seeming more consistent with demo- 
cratic equality, because every member of the party has 
in theory equal weight in the party meeting. It is used 
whenever a line of policy has to be settled, or the whole 
party to be rallied for a particular party division. But 
of course it cannot be employed every day or for every bill. 
Hence when no party meeting has issued its orders, a 
member is free to vote as he pleases, or rather as he 
thinks his constituents please. If he knows nothing of 
the matter, he may take a friend's advice, or vote as he 
hears some prominent man on his own side vote. Any- 
how, his vote is doubtful, unpredictable ; and conse- 
quently divisions on minor questions are uncertain. 
This is a further reason, added to the power of the 
standing committees, why there is a want of consistent 
policy in the action of Congress. As its leading men 
have comparatively little authority, and there are no 
means whereby a leader could keep his party together 
on ordinary questions, so no definite ideas run through 
its conduct and express themselves in its votes. It 
moves in zig-zags. 



CHAP. XIX GENERAL OBSERVATIONS ON CONGRESS 275 

The freedom thus enjoyed by members on minor 
questions has the interesting result of preventing dis- 
sensions and splits in the parties. There are substances 
which cohere best when their contact is loose. Fresh 
fallen snow keeps a smooth surface even on a steep 
slope, but when by melting and regelation it has be- 
come ice, cracks and rifts begin to appear. A loose 
hung carriage will hold together over a road whose rough- 
ness would strain and break a more solid one. Hence 
serious differences of opinion may exist in a congressional 
party without breaking its party unity, for nothing more 
is needed than that a solid front should be presented on 
the occasions, few in each session, when a momentous 
division arrives. The appearance of agreement is all 
the more readily preserved because there is little 
serious debating, so that the advocates of one view 
seldom provoke the other section of their party to 
rise and contradict them ; while a member who dis- 
sents from the bulk of his party on an important issue 
is slow to vote against it, because he has little chance 
of defining and defending his position by an explana- 
tory speech. 

The congressional caucus is more or less called 
into action according to the number and gravity of the 
party issues that come before Congress. In troublous 
times it has to be supplemented by something like 
obedience to regular leaders. Mr. Thaddeus Stevens, 
for instance, led with recognized authority the majority 
of the House in its struggle with President Andrew 
Johnson. The Senate is rather more jealous of the 
equality of all its members. No senator can be said to 
have any authority beyond that of exceptional talent 
and experience ; and of course a senatorial caucus, since 
it rarely consists of more than forty persons, is a better 



276 THE NATIONAL GOVERNMENT parti 

working body than a House caucus, which may reach 
two hundred/ 

The European reader may be perplexed by the 
apparent contradictions in what has been said regarding 
the party organization of Congress. " Is the American 
House after all," he will ask, *' more or less a party 
body than the British House of Commons ? Is the 
spirit of party more or less strong in Congress than in 
the Aiherican people generally ? " 

I answer firstly that the House of Kepresentatives is 
for the purpose of serious party issues fully as much a 
party body as the House of Commons. A member 
voting against his party on such an issue is more certain 
to forfeit his party reputation and his seat than is an 
English member. This is true of both the Senate and 
the House. But for the purpose of ordinary questions, 
of issues not involving party fortunes, a representative 
is less bound by party ties than an English member, 
because he has neither leaders to guide him by their 
speeches nor whips by their private instructions. The 
apparent gain is that a wider field is left for independent 
judgment on non-partisan questions. The real loss is 
that legislation becomes weak and inconsistent. This 
conclusion is not encouraging to those who expect us to 
get rid of party in our legislatures. A deliberative 
assembly is, after all, only a crowd of men ; and the 
more intelligent a crowd is, so much the more numerous 
are its volitions ; so much greater the difficulty of 

^ At one time the congressional caucus played in American history 
a great part which it has now renounced. From 1800 till 1824 party 
meetings of senators and representatives were held which nominated the 
party candidates for the presidency, who were then accepted by each party 
as. its regular candidates. In 1828 the State legislatures made these 
nominations, and in 1832 the present system of national conventions (see 
fOfA,, in Vol. II.) was introduced. 



CHAP. XIX GENERAL OBSERVATIONS ON CONGRESS 277 

agreement. Like other crowds, a legislature must be 
led and ruled. Its merit lies not in the independence 
of its members, but in the reflex action of its opinion 
upon the leaders, in its willingness to defer to them 
in minor matters, reserving disobedience for the issues 
in which some great principle overrides both the obli- 
gation of deference to established authority and the 
respect due to special knowledge. 

The above remarks answer the second question also. 
The spirit of party may seem to be weaker in Con- 
gress than in the people at large. But this is only 
because the questions which the people decide at the 
polls are always questions of choice between candidates 
for office. These are definite questions, questions emin- 
ently of a party character, because candidates represent 
in the America of to-day not principles but parties. 
Whenever a vote upon persons occurs in Congress, 
Congress gives a strict party vote. Were the people to 
vote at the polls on matters not explicitly comprised 
within a party platform, there would be the same uncer- 
tainty as Congress displays. The habit of joint action 
which makes the life of a party is equally intense 
in every part of the American system. But in England 
the existence of a Ministry and Opposition in Parliament 
sweeps within the circle of party action many topics 
which in America are left outside, and therefore Con- 
gress seems, but is not, less permeated than Parliament 
by party spirit. 



CHAPTER XX 

THE RELATIONS OF CONGRESS TO THE PRESIDENT^ 

So far as they are legislative bodies, the House and the 
Senate have similar powers and stand in the same rela- 
tion to the executive.^ We may therefore discuss them 
together, or rather the reader may assume that whatever 
is said of the House as a legislature is also true of the 
Senate. The Senate is also a semi -executive council, 
intended to advise and to restrain the President, but its 
functions in that capacity have been already discussed.* 
Although the Constitution forbids any Federal oflScial 
to be chosen a member of either the House or the 
Senate, there is nothing in it to prevent officials from 
speaking there ; as indeed there is nothing to prevent 
either House from assigning places and the right to 

^ The relations of the various organs of government tp one another in 
the United States are so interesting and so unlike those which exist in 
most European countries, that I have found it necessary to describe them 
with some minuteness, and from several points of view. In this chapter 
an account is given of the actual working relations of the President and 
Congress ; in the next chapter the general theory of the respective func- 
tions of the executive and legislative departments is examined, and the 
American view of the nature of these functions explained ; while in 
Chapter XXV. the American system as a whole is compared with the so- 
called " cabinet system " of England and her colonies. 

2 The House has the exclusive initiative in revenue bills ; but this 
privilege does not affect what follows. 

3 See above, Chapter XL 



CHAP. XX CONGRESS AND THE PRESIDENT 279 

speak to any one whom it chooses. Now, however, no 
Federal officer appears on the floor. In the early days 
Washington came down and delivered his opening 
speech. Occasionally he remained in the Senate dur- 
ing a debate, and even expressed his opinion there. 
When Hamilton, the first secretary of the treasury, 
prepared his famous report on the national finances, he 
asked the House whether they would hear him speak it, 
or would receive it in writing. They chose the latter 
course, and the precedent then set has been followed 
by subsequent ministers,^ while that set in 1801 by 
President Jefferson when he transmitted his message in 
writing instead of delivering a speech, has been similarly 
respected by all his successors. Thus neither House 
now hears a member of the executive. A committee 
may request the attendance of a minister and examine 
him. but he appears before it only as a witness to 
answer questions, not to state and argue his own case. 
There is therefore little direct intercourse between 
Congress and the administration, and no sense of in- 
terdependence and community of action such as exists 

^ Hamilton, however, was, wliile secretary, frequently present in 
Congress and addressed it. Nor has any rule ever been made by either 
House to prevent a secretary from doing so now. It is mere matter of 
custom. A bill was brought in some years ago giving seats in both 
Houses of Congress to cabinet ministers, and permitting them to speak on 
matters relating to their department, but not to join in general debate. 
This was provided in the Constitution of the Southern Confederacy (see 
note to Chapter XXVI. at the end of this volume). The President may 
of course come into the Senate, though he does not now address it. He does 
not go into the House of Representatives. Nor has any English king 
entered the House of Commons, except Charles I. in 1642, on the occasion 
of his attempt to seize the five members, when, says the Journal, " His 
Majesty came into the House and took Mr. Speaker's chair : * Gentlemen, 
I am sorry to have this occasion to come unto you.' " The results did not 
encourage his successors to repeat the visit. But Charles II. and Anne 
were sometimes present during debates in the House of Lords ; and there 
would not, it is conceived, be anything to prevent the Sovereign from 
being present now. 



28o THE NATIONAL GOVERNMENT parti 

in other parliamentary countries.^ Be it remembered 
also that a minister may never have sat in Congress, 
and may therefore be ignorant of its temper and habits. 
Three members of Mr. Cleveland's present cabinet have 
never had a seat in either House. The President him- 
self, although he has been voted into office by his party, 
is not necessarily its leader, nor even one among its 
most prominent leaders. Hence he does not sway the 
councils and guide the policy of those members of 
Congress who belong to his own side. The expression 
of his wishes conveyed in a message has not necessarily 
any more effect on Congress than an article in a pro- 
minent party newspaper. No duty lies on Congress to 
take up a subject to which he has called attention as 
needing legislation ; and, in fact, the suggestions which 
he makes, year after year, are usually neglected, even 
when his party has a majority in both Houses, or when 
the subject lies outside party lines. 

The President and his cabinet have no recognized 
spokesman in either House. A particular senator or 
representative may be in confidential communication 
with them, and be the instrument through whom 
they seek to act; but he would probably disavow 
rather than claim the position of an exponent of 
ministerial wishes. The only means the President 
possesses of influencing members of Congress is through 
patronage. He may give places to them or their friends ; 
he may approve or veto bills in which they are in- 
terested ; his ministers may allot lucrative contracts to 
their nominees. This power is considerable, but covert, 
for the knowledge that it was being used might damage 

^ The House some years ago passed a biU for transferring Indian 
aflfairs from the Secretary of the Interior to the Secretary of War without 
consulting either official. 



CHAP. XX CONGRESS AND THE PRESIDENT 281 

the member in public estimation and expose the execu- 
tive to imputations. The consequence of cutting off 
open relations has been to encourage secret influence, 
which may of course be used for legitimate purposes, 
but which, being exerted in darkness, is seldom 
above suspicion. When the President or a minister is 
attacked in Congress, it is not the duty of any one 
there to justify his conduct. The accused ofl&cial may 
send a written defence or may induce a member to 
state his case; but this method lacks the advantages 
of the European parliamentary system, under which 
the person assailed repels in debate the various charges, 
showing himself not afraid to answer fresh questions 
and grapple with new points. Thus by its exclusion 
from Congress the executive is deprived of the power 
of leading and guiding the legislature and of justifying 
in debate its administrative acts. 

Next as to the power of Congress over the execu- 
tive. Either House of Congress, or both Houses jointly, 
can pass resolutions calling on the President or his 
ministers to take certain steps, or censuring steps they 
have already taken. The President need not obey such 
resolutions, need not even notice them. They do not 
shorten his term or limit his discretion.^ If the resolu- 
tion be one censuring a minister, or demanding his dis- 
missal, there is another ground on which the President 
may disregard it. The act is in law not the minister's 
act, but that of the President himself, and he does not 



^ In England a resolution of the House of Commons alone is treated 
as imperative in matters lying within the discretion of the executive, but 
then the House of Commons has the power of dismissing the Government 
if its wishes are disregarded. There have even been instances of late 
years in which the executive has ceased to put in force the provisions of 
an unrepealed statute, because the House of Commons has expressed its 
disapproval of that statute. 



282 THE NATIONAL GOVERNMENT parti 

therefore escape responsibility by throwing over his 
adviser. 

Either House of Congress can direct a committee to 
summon and examine a minister, who, though he might 
legally refuse to attend, never does refuse. The com- 
mittee, when it has got him, can do nothing more than 
question him. He may evade their questions, may put 
them off the scent by dexterous concealments. He 
may with impunity tell them that he means to take 
his own course. To his own master, the President, he 
standeth or falleth. 

Congress may refuse to the President the legislation 
he requests, and thus, by mortifying and embarrassing 
him, may seek to compel his compliance with its wishes. 
It is only a timid President, or a President greatly 
bent on accomplishing some end for which legislation 
is needed, who will be moved by such tactics. 

Congress can pass biUs requiring the President or 
any minister to do or abstain from doing certain acts 
of a kind hitherto left to his free will and judgment, 
may, in fact, endeavour to tie down the officials by pre- 
scribing certain conduct for them in great detail. The 
President will presumably veto such bills, as contrary 
to sound administrative policy. If, however, he signs 
them, or if Congress passes them by a two-thirds vote 
in both Houses over his veto, the further question may 
arise whether they are within the constitutional powers 
of Congress, or are invalid as unduly trenching on the 
discretion which the Constitution leaves to the President. 
If he (or a minister), alleging them to be unconstitutional, 
disobeys them, the only means of deciding whether he is 
right is by getting the point before the Supreme Court 
as an issue of law in some legal proceeding. This 
cannot always be done. If it is done, and the court 



CHAP. XX CONGRESS AND THE PRESIDENT 283 

decide against the President, then if he still refuses 
to obey, nothing remains but to impeach him. 

Impeachment, of which an account has already been 
given, is the heaviest piece of artillery in the con- 
gressional arsenal, but because it is so heavy it is unfit 
for ordinary use. It is like a hundred -ton gun which 
needs complex machinery to bring it into position, an 
enormous charge of powder to fire it, and a large mark 
to aim at. Or to vary the simile, impeachment is what 
physicians caU a heroic medicine, an extreme remedy, 
proper to be applied against an official guilty of political 
crimes, but ill adapted for the punishment of small 
transgressions. Since 1789 it has been used only once 
against a President, and then, although that President 
(Andrew Johnson) had for two years constantly, and 
with great intemperance of language, so defied and 
resisted Congress that the whole machinery of govern- 
ment had been severely strained by the collision of the 
two authorities, yet the Senate did not convict him, 
because no single offence had been clearly made out. 
Thus impeachment does not tend to secure, and indeed 
was never meant to secure, the co-operation of the 
executive with Congress. 

It accordingly appears that Congress cannot compel 
the dismissal of any official. It may investigate his 
conduct by a committee and so try to drive him 
to resign. It may request the President to dismiss 
him, but if his master stands by him and he sticks to 
his place, nothing more can be done. He may of 
course be impeached, but one does not impeach for 
mere incompetence or laxity, as one does not use steam 
hammers to crack nuts. Thus we arrive at the result, 
surprising to a European, that while Congress may 
examine the servants of the public to any extent, may 



284 THE NA TIONAL GO VERNMENT part i 

censure them, may lay down rules for their guidance, it 
cannot get rid of them. It is as if the directors of a 
company were forced to go on employing a manager 
whom they had ceased to trust, because it was not they 
but the shareholders who had appointed him. 

There remains the power which in free countries has 
been long regarded as the citadel of parliamentary 
supremacy, the power of the purse. Congress has 
the sole right of raising money and appropriating 
it to the service of the state. Its manao^ement of 
national finance is significantly illustrative of the plan 
which separates the legislative from the executive. 
It has been shown in a preceding chapter that in 
this supremely important matter of raising and apply- 
ing the public revenue, the executive government, 
instead of proposing and supervising, instead of securing 
that each department gets the money that it needs, that 
no money goes where it is not needed, that revenue is 
procured in the least troublesome and expensive way, 
that an exact yearly balance is struck, that the policy of 
expenditure is self-consistent and reasonably permanent 
from year to year, is by its exclusion from Congress 
deprived of influence on the one hand, of responsibility 
on the other. The chancellorship of the exchequer, to 
use an English expression, is put into commission, and 
divided between the chairmen of several unconnected 
committees of both Houses. A mass of business which, 
as English experience shows, specially needs the know- 
ledge, skill, and economical conscience of a responsible 
ministry, is left to committees which are powerful 
but not responsible, and to Houses whose nominal 
responsibility is in practice sadly weakened by their 
want of appropriate methods and organization. 

The question follows : How far does the power of the 



CHAP. XX CONGRESS AND THE PRESIDENT 285 

purse enable Congress to control the President ? Much 
less than in European countries. Congress may check 
any particular scheme which the President favours by re- 
fusing supplies for it. . If he were to engage in military 
operations — he cannot under the Constitution " declare 
war " for that belongs to Congress — the House might 
paralyse him by declining to vote the requisite army 
appropriations. If he were to repeat the splendid 
audacity of Jefferson by purchasing a new territory, they 
could withhold the purchase money. But if, keeping 
within the limits of his constitutional functions, he takes 
a different course from that they recommend, if for 
instance he should refuse, at their repeated requests, to 
demand the liberation of American citizens pining in 
foreign dungeons, or to suppress disorders in a State 
whose government had requested Federal intervention, 
they would have to look on. To withhold the ordinary 
supplies, and thereby stop the machine of government, 
would injure the country and themselves far more than 
the President. They would, to use a common expression, 
be cutting off their nose to spite their face. They could 
not lawfully refuse to vote his salary, for that is guaran- 
teed to him by the Constitution. They could not, except 
by a successful impeachment, turn him out of the White 
House or deprive him of his title to the obedience of 
all Federal officials. 

Accordingly, when Congress has endeavoured to 
coerce the President by the use of its money powers, the 
case being one in which it could not attack him by 
ordinary legislation (either because such legislation 
would be unconstitutional, or for want of a two-thirds 
majority), it has proceeded not by refusing appropria- 
tions altogether, as the English House of Commons 
would do in like circumstances, but by attaching what 



286 THE NATIONAL GOVERNMENT parti 

is called a " rider " to an appropriation bill. More than 
twenty years ago the House had formed the habit of in- 
serting in bills appropriating money to the purposes of 
the public service, provisions relating to quite different 
matters, which there was not time to push through in 
the ordinary way.^ In 1867 Congress used this device 
against President Johnson, with whom it was then at 
open war, by attaching to an army appropriation bill a 
clause which virtually deprived the President of the 
command of the army, entrusting its management to 
the general highest in command (General Grant). The 
President yielded, knowing that if he refused the bill 
would be carried over his veto by a two-thirds vote ; 
and a usage already mischievous was confirmed. In 
1879, the majority in Congress attempted to overcome, 
by the same weapon, the resistance of President Hayes 
to certain measures affecting the South which they 
desired to pass. They tacked these measures to three 
appropriation bills, army, legislative, and judiciary. 
The minority in both houses fought hard against the 
riders, but were beaten. The President vetoed all three 
bills, and Congress was obliged to pass them without 
the riders. Next session the struggle recommenced in 
the same form, and the President, by rejecting the 
money bills, again compelled Congress to drop the 
tacked provisions. This victory, which was of 
course due to the fact that the dominant party in 
Congress could not command a two - thirds majority, 
was deemed to have settled the question as between 
the executive and the legislature, and may have per- 

^ A leading member of the House, Mr. Reagan of Texas, said there that 
between 1862 and 1875, 375 measures of general legislation had been 
passed as provisoes upon appropriation bills. See Mr. Horace Da\is'8 
"American Constitutions," p. 30, in Johm Hopkins University Studies, 
Third Series. 



CHAP. XX CONGRESS AND THE PRESIDENT 287 

manently discouraged the latter from recurring to the 
same tactics. 

President Hayes in his veto messages argued strongly 
against the whole practice of tacking other matters to 
money bills. It has certainly caused great abuses, and 
is now forbidden by the constitutions of many States. 
Recently the President has urged upon Congress the 
desirability of so amending the Federal Constitution as 
to enable him, as a State governor is by some recent 
State constitutions allowed to do, to veto single items 
in an appropriation bill without rejecting the whole bill. 
Such an amendment is generally desired by enlightened 
men, because it would enable the executive to do its 
duty by the countrj^' in defeating many petty jobs 
which are now smuggled into these bills, without losing 
the supplies necessary for the public service which the 
bills provide. The change seems a small one, but its 
adoption would cure one of the defects due to the absence 
of ministers from Congress, and might save the nation 
millions of dollars a year, by diminishing wasteful ex- 
penditure on local purposes. But the process of amend- 
ing the Constitution is so troublesome that even a change 
which involves no party issues may remain unadopted 
long after the best opinion has become unanimous in its 
favour. 



CHAPTEE XXI 

THE LEGISLATURE AND THE EXECUTIVE 

The fundamental characteristic of the American National 
Government is its separation of the legislative, executive, 
and judicial departments. This separation is the merit 
which the Philadelphia Convention chiefly sought to attain, 
and which the Americans have been wont to regard as 
most completely secured by their Constitution. In 
Europe, as well as in America, men are accustomed to 
talk of legislation and administration as distinct. But a 
consideration of their nature will show that it is not easy 
to separate these two departments in theory by analysis, 
and still less easy to keep them apart in practice. We 
may begin by examining their relations in the internal 
affairs of a nation, reserving foreign policy for a later 
part of the discussion. 

People commonly think of the Legislature as the 
body which lays down general rules of law, which pre- 
scribes, for instance, that at a man's death his children 
shall succeed equally to his property, or that a convicted 
thief shall be punished with imprisonment, or that a 
manufacturer may register his trade mark. They 
think of the Executive as the person or persons who 
do certain acts under those rules, who lock up con- 
victs, register trade marks, carry letters, raise and pay 



CHAP. XXI LEGISLATURE AND EXECUTIVE 289 

a police and an army. In finance the Legislature im- 
poses a tax, the Executive gathers it, and places it in 
the treasury or in a bank, subject to legislative orders ; 
the Legislature votes money by a statute, appropriating 
it to a specific purpose ; the Executive draws it from 
the treasury or bank, and applies it to that purpose, 
perhaps in paying the army, perhaps in building a 
bridge. 

The executive is, in civilized countries, itself the crea- 
ture of the law, deriving therefrom its existence as well as 
its authority. Sometimes, as in France, it is so palpably 
and formally. The President of the Eepublic has been 
called into existence by the Constitution. Sometimes, 
as in England, it is so substantially, though not formally. 
The English Crown dates from a remote antiquity, when 
custom and belief had scarcely crystallized into law ; and 
though Parliament has repeatedly determined its devolu- 
tion upon particular persons or families — it is now held 
under the Act of Settlement — no statute has ever affected 
to confer upon it its rights to the obedience of the people. 
But practically it holds its powers at the pleasure of 
Parliament, which has in some cases expressly limited 
them, and in others given them a tacit recognition. 
We may accordingly say of England and of all con- 
stitutional monarchies as well as of republics that the 
executive in all its acts must obey the law, that is to 
say, if the law prescribes a particular course of action, 
' the executive must take that course ; if the law forbids 
a particular course, the executive must avoid it. 

It is therefore clear that the extent of the power of 
the executive magistrate depends upon the particularity 
with which the law is drawn, that is, upon the amount of 
discretion which the law leaves to him. If the law is 
general in its terms, the executive has a wide discretion. 

VOL. I u 



290 THE NATIONAL GOVERNMENT parti 

If, for instance, the law prescribes simply that a duty of 
ten per cent ad valorem be levied on all manufactured 
goods imported, it rests with the executive to determine 
by whom and where that duty shall be collected, and on 
what principles it shall be calculated. If the law merely 
creates a post-office, the executive may fix the rate of 
payment for letters and parcels, and the conditions on 
which they will be received and delivered. In these 
cases the executive has a large field within which to 
exert its free will and choice of means. Power means 
nothing more than the extent to which a man can make 
his individual will • prevail against the wills of other 
men, so as to control them. Hence, when the law 
gives to a magistrate a wide discretion, he is powerful, 
because the law clothes his will with all the power of the 
state. On the other hand, if the law goes into very 
minute details, directing the official to do this and not 
to do that, it narrows the discretion of the executive 
magistrate. His personal will and choice are gone. He 
can no longer be thought of as a co-ordinate power in 
the state. He becomes a mere servant, a hand to carry 
out the bidding of the legislative brain, or, we may even 
say, a tool in the legislative hand. 

As the legislature has been the body through which 
the people have chiefly asserted their authority, we 
find that in all free states law-making assemblies, 
whether primary or representative, have sought to 
extend their province and to subject the executive to 
themselves. They have done this in several ways. 
In the democracies of ancient Greece the assembly of 
all citizens not only passed statutes of general applica- 
tion, but made peace or declared war ; ordered an ex- 
pedition to start for Sphacteria, and put Cleon at the 
head of it; commanded the execution of prisoners or 



CHAP. XXI LEGISLATURE AND EXECUTIVE 291 

reprieved them ; conducted, in fact, most of the public 
business of the city by a series of direct decrees, all of 
which were laws, i.e. declarations of its sovereign will. 
It was virtually the government. The chief executive 
officers of Athens, called the generals, had little authority 
except over the military operations in the field. Even 
the Roman Constitution, a far more highly developed 
and scientific, though also a complicated and cumbrous 
system, while it wisely left great discretion to the chief 
magistrates (requiring them, however, to consult the 
Senate), yet permitted the passing 'pro re nata of im- 
portant laws, which were really executive acts, such as 
the law by which Pompey received an extraordinary 
command against Mithridates. The Romans did not 
draw, any more than the Greek republics, a distinction 
between general and special legislation.^ 

This method, in which the people directly govern 
as a legislature, reducing the executive magistrates to 
passive instruments, is inapplicable where the country is 
large, because the mass of citizens cannot come together 
as an assembly. It is almost equally inapplicable where 
the legislature, though a representative body, is very 
numerous. England, accordingly, and the nations which 
have imitated England,^ have taken a different method. 

^ The distinction between general legislative acts, which we call 
laws proper or statutes, and special legislative acts, ordering a particular 
thing to be done, is marked in Greek by the words v6p.os and ^<^wr/Aa; and 
in some cities, as in Athens, a voiuos could be passed or changed only by a 
specially provided method. At Home everything done by the people was 
of equal legal force and called Ux (though the word privUegium is some- 
times applied to special acts). The distinction is apt to be forgotten under 
a despotic monarch, who is at once the executive and the legislative 
authority. Nevertheless, even imder an autocrat, there are some general 
rules which his individual volition dares not change, because the universal 
opinion of the people approves them. The book of Daniel even repre- 
sents Darius as unable to revoke a general law he has once sanctioned, or 
to except a particular person from its operation. 

2 But during and immediately after the great Civil War the Long 



292 THE NA TIONAL GO VERNMENT part i 

The people (that is, the qualified voters) have allowed 
an executive to subsist with apparently wide powers, 
but they virtually choose this executive, and keep it in 
so close and constant a dependence upon their pleasure, 
that it dare not act against what it believes their will 
to be. The struggle for popular liberties in England 
took at first the form of a struggle for the supremacy 
of law ; that is to say, it was a struggle to restrain the 
prerogative of the king by compelling his ministers to 
respect the ancient customs of the land and the statutes 
passed in Parliament. As the customs were always 
maintained, and the range of the statutes constantly 
widened, the executive was by degrees hemmed in 
within narrow limits, its discretionary power restricted, 
and that characteristic principle of the Constitution, 
which has been well called " The Reign of Law," was 
established. It was settled that the law, i.e. the ancient 
customs and the statutes, should always prevail against 
the discretion of the Crown and its ministers, and that 
acts done by the servants of the Crown should be justi- 
ciable, exactly like the acts of private persons.^ This 
once achieved, the executive fairly bitted and bridled, 
and the ministry made to hold office at the pleasure of 
the House of Commons, Parliament had no longer its 
former motive for seeking to restrict the discretion of 
the ministers of the Crown by minutely particular 
legislation, for ministers had become so accustomed 
to subjection that their discretion might be trusted. 
Parliament has, in fact, of late years begun to sail on 

Parliament acted as both a legislative and an executive authority, as 
did the Convention through part of the French Revolution. And Parlia- 
ment of course still retains its power of giving what are practically execu- 
tive orders, t.g, it could pass a statute directing an expedition to seize a 
particular Pacific island. 

^ See Mr. Dicey's Law of the Ccniditution for a lucid exposition of this 
principle. 



CHAP. XXI LEGISLATURE AND EXECUTIVE 293 

the other tack, and allows ministers to do many things 
by regulations, schemes, orders in council, and so forth, 
which would previously have been done by statute.^ 

It may be asked how it comes, if this be so, that people 
nevertheless talk of the executive in England as being a 
separate and considerable authority ? The answer is 
twofold. The English Crown has never been, so to 
speak, thrown into the melting-pot and recast, but 
has continued, in external form and seeming, an in- 
dependent and highly dignified part of the constitutional 
system.^ Parliament has never asserted a direct control 
over certain parts of the royal prerogative, such as the 
bestowal of honours, the creation of peerages, the making 
of appointments to office. No one at this moment can 
say exactly what the royal prerogative does or does not 
include. And secondly, the actual executive, i.e. the 

1 In these cases, however (of which schemes under the Endowed 
Schools Acts may be taken as an instance), Parliament reserves to itself a 
right of veto in the form of an address to the Crown requesting that the 
regulation or scheme be not approved. 

2 An interesting illustration of the relations of the English executive 
to the legislature in the fourteenth and fifteenth centuries, when Parliament 
was little more than a pure legislature, is afforded by the present constitu- 
tion of the tiny kingdom of the Isle of Man, the last survivor of those 
numerous kingdoms among which the British Isles were once divided. 
Its government is carried on by a Governor (appointed by the English 
Crown), a council of eight (composed partly of persons nominated by the 
Crown and partly of ex-ofl&cio members holding posts to which they 
have been appointed by the Crown), and an elected representative 
assembly of twenty-four. The assembly is purely legislative, and cannot 
check the Governor otherwise than by withholding the legislation he 
wishes for and such taxes as are annually voted. For the purposes of 
finance bills the assembly (House of Keys) and the council sit together but 
vote separately. The Governor presides, as the English king did in his 
Great CounciL The Governor can stop any legislation he disapproves, 
and can retain his ministers against the will of the assembly. He is a true 
executive magistrate, commanding, moreover, like the earlier English kings, 
a considerable revenue which does not depend on the annual votes of 
the legislature. Here therefore is an Old-World instance of the American 
system as contradistinguished from the cabinet system of England and 
her colonies. 



294 THE NA TIONAL GO VERNMENT part i 

ministry of the day, retains some advantages which are 
practically, though not legally, immense. It has an 
initiative in all legislation, a sole initiative in financial 
legislation. It is a small and well organized body 
placed in the midst of a much larger and less organized 
body (t.e;. the two Houses), on which therefore it can 
powerfully act. All patronage, ecclesiastical as well 
as civil, lies in its gift, and. though it must not use 
this functio|i so as to disgust the Commons, it has 
great latitude in the disposal of favours. While Parlia- 
ment is sitting it disposes of a large part, sometimes 
(as in 1887) of the whole of the time of the House 
of Commons, and can therefore advance the measures it 
prefers, while retarding or evading motions it dislikes. 
During nearly half the year Parliament is not sitting, 
and the necessities of a great State placed in a restless 
world oblige a ministry to take momentous resolutions 
upon its own responsibility. Finally, it includes a few 
men who have obtained a hold on the imagination and 
confidence of the people, which emboldens them to resist 
or even to lecture Parliament, and often to prevail, not 
only against its first impulses, but possibly against its de- 
liberate wishes. And an English ministry is strong not 
only because it so firankly acknowledges its dependence 
on the Commons as not to rouse the antagonism of that 
body, to which, be it remembered, most ministers belong, 
but also because it has another power outside to which it 
can, in extreme cases, appeal. It may dissolve Parlia- 
ment, and ask the people to judge between its views 
and those of the majority of the House of Commons. 
Sometimes such an appeal succeeds. The power of 
making it is at all times a resource. 

This delicate equipoise of the ministry, the House 
of Commons, and the nation acting at a general election. 



CHAP. XXI LEGISLATURE AND EXECUTIVE 295 

is the secret of the smooth working of the British 
Constitution. It reappears in two remarkable Con- 
stitutions, which deserve fuller study than they have 
yet received from American or English publicists, 
those of Prussia and the new German Empire. There, 
however, the ministry is relatively stronger than in 
England, because the Crown retains not only a wider 
stretch of legal authority, but a greater moral influence 
over the people, who have had less practice than the 
English in working free institutions, and who never forget 
that they are soldiers, and the King-Emperor head of 
the army. A Prussian minister is so likely to have 
the nation on his side when he makes an appeal to it 
in the name of the King, and feels so confident that 
even if he defies the Chambers without dissolving, the 
nation will not be greatly stirred, that he sometimes 
refuses to obey the legislature. This is one of those 
exceptions which illustrate the rule. The legislature 
is prevented from gaining ground on the executive, 
not so much by the Constitution as by the occasional 
refusal of the executive to obey the Constitution, a refusal 
made in reliance on the ascendency of the Crown. 

So far we have been considering domestic policy. 
The case of foreign affairs differs chiefly in this, that 
they cannot be provided for beforehand by laws general 
in application, but minutely particular in wording. A 
governing assembly may take foreign affairs into its own 
hand. In the republics of antiquity the Assembly did so, 
and was its own foreign office. The Athenian Assembly 
received ambassadors, declared war, concluded treaties. 
It got on well enough while it had to deal with other 
republics like itself, but suffered when the contest came 
to be with an astute diplomatist like Philip of Macedon. 
The Koman Senate conducted the foreign policy of Kome, 



296 THE NATIONAL GOVERNMENT parti 

I -^ ■■■ ■ ■ ■<■■■■■! ■ ■■■!■■»■ 

often with the skill to be expected from men of immense 
experience and ability, yet sometimes with a vacillation 
which a monarch would have been less likely to show. 
But the foreign relations of modern states are so nume- 
rous and complex, and so much entangled with com- 
mercial questions, that it has become necessary to 
create a staff of trained officials to deal with them. 
No large popular assembly could have either the time 
or the knowledge requisite for managing the ordinary 
business, much less could it conduct a delicate negotia- 
tion whose success would depend on promptitude and 
secrecy. Hence even democratic countries like France 
and England are forced to leave foreign affairs to a far 
greater degree than home affairs to the discretion of the 
ministry of the day. France reserves to the Chambers 
the power of declaring war or concluding a treaty. 
England has so far adhered to the old traditions as to 
leave both to the Crown, though the first, and in most 
cases the second, must be exerted with the virtual 
approval of Parliament. The executive is as distinctly 
responsible to the legislature, as clearly bound to obey 
the directions of the legislature, as in matters of 
domestic concern. But the impossibility which the 
legislature in countries like France and England finds 
in either assuming executive functions in international 
intercourse, or lapng down any rules by law for the 
guidance of the executive, necessarily gives the executive 
a wide discretion and a correspondingly large measure of 
influence and authority. The only way of restricting this 
authority would be to create a. small foreign affairs com- 
mittee of the legislature and to empower it to sit when the 
latter was not sitting. And this extreme course neither 
France nor England has yet taken, because the depend- 
ence of the ministry on the majority of the legislature has 



CHAP. XXI LEGISLATURE AND EXECUTIVE 297 

hitherto seemed to secure the conformity of the Foreign 
Office to the ideas and sentiments of that majority. 

Before applying these observations to the United 
States, let us summarize the conclusions we have 
reached. 

We have found that wherever the will of the people 
prevails, the legislature, since it either is or represents 
the people, can make itself omnipotent, unless checked 
by the action of the people themselves. It can do this 
in two ways. It may, like the republics of antiquity, 
issue decrees for particular cases as they arise, giving 
constant commands to all its agents, who thus become 
mere servants with no discretion left them. Or it may 
frame its laws with such particularity as to provide by 
anticipation for the greatest possible number of imagin- 
able cases, in this way also so binding down its officials 
as to leave them no volition, no real authority. 

We have also observed that every legislature tends 
so to enlarge its powers as to encroach on the executive ; 
and that it has great advantages for so doing, because a 
succeeding legislature rarely consents to strike oflF any 
fetter its predecessor has imposed. 

Thus the legitimate issue of the process would be the 
extinction or absorption of the executive as a power in 
the State. It would become a mere set of employes, 
obeying the legislature as the clerks in a bank obey the 
directors. If this does not happen, the cause is generally 
to be sought in some one or more of the following 
circumstances : — 

The legislature may allow the executive the power of 
appealing to the nation against itself (England).^ 

The people may from ancient reverence or the habit 

1 In France the President can dissolve the Chambers, but only with 
the consent of the Senate. 



298 THE NA TIONAL GO VERNMENT part i 

of military submission be so much disposed to support 
the executive as to embolden the latter to defy the 
legislature (Prussia). 

The importance of foreign policy and the difficulty 
of taking it out of the hands of the executive may be so 
great that the executive will draw therefrom an influence 
re-acting in favour of its general weight and dignity 
(Prussia, England, and, to some extent, France). 

Let us now see how the founders of the American Con- 
stitution settled the relations of the departments. They 
were terribly afraid of a strong executive, and desired to 
reserve the final and decisive voice to the legislature, as 
representing the people. They could not adopt what I 
have called the Greek method of an assembly both 
executive and legislative, for Congress was to be a body 
with limited powers ; continuous sittings would be in- 
convenient, and the division into two equally powerful 
houses would evidently unfit it to govern with vigour 
and promptitude. Neither did they adopt the English 
method of a legislature governing through an executive 
dependent upon it. It was urged in the Philadelphia Con- 
vention of 1787 that the executive ought to be appointed 
by and made accountable to the legislature, as being the 
supreme power in the national government. This was 
over-ruled, because the majority of the Convention were 
fearful of " democratic haste and instability," fearful that 
the legislature would, in any event, become too power- 
ful, and therefore anxious to build up some counter 
authority to check and balance it. By making the Pre- 
sident independent, and keeping him and his ministers 
apart from the legislature, the Convention thought they 
were strengthening him, as well as protecting it from 
attempts on his part to corrupt it.^ They were also 

^ Their sense of the danger to a legislature from corruption by the 



CHAP. XXI LEGISLA TURE AND EXECUTIVE 299 

weakening him; He lost the initiative in legislation 
which the English executive enjoys. He had not the 
English King's power of dissolving the legislature and 
throwing himself upon the country. Thus the executive 
magistrate seemed left at the mercy of the legislature. 
It could weave so close a network of statutes round 
him, like the net of iron links which Hephaestus throws 
over the lovers in the Odyssey, that his discretion, his 
individual volition, seemed to disappear, and he ceased 
to be a branch of the government, being nothing more 
than a servant working under the eye and at the nod of 
his master. This would have been an absorption of the 
executive into the legislature more complete than that 
of England, for the English prime minister is at any 
rate a leader, perhaps as necessary to his parliamentary 
majority as it is to him, whereas the President would 
have become a sort of superior police commissioner, irre- 
movable during four years, but debarred from acting 
either on Congress or on the people. 

Although the Convention may not have realized 
how helpless such a so-called Executive must be, 
they felt the danger of encroachments by an ambitious 
legislature, and resolved to strengthen him against 
it. This was done by giving the President a veto 
which it requires a two-thirds vote of Congress to over- 
ride. In doing this they went back on their previous 
action. They had separated the President and his 
ministers from Congress. They now bestowed on him 
legislative functions, though in a diflFerent form. He 
became a distinct branch of the legislature, but for 

executive was probably quickened by what they knew of the condition of 
the Irish Parliament, full, even after 1782, of placemen and pensioners. 
Much of the best blood of Ulster had emigrated to America in the preced- 
ing half century, and Irish politics must have excited a good deal of 
interest there. 



300 THE NATIONAL GOVERNMENT parti 

negative purposes only. He could not propose, but he 
could refuse. Thus the executive was strengthened, not 
as an executive, but by being made a part of the legis- 
lature ; and the legislature, already weakened by being 
divided into two co-equal houses, was further weakened 
by finding itself liable to be arrested in any new de- 
parture on which two-thirds of both houses were not 
agreed. 

When the two houses are of one mind, and the party 
hostile to the President has a two-thirds majority in both, 
the Executive is almost powerless. It may be right that 
he should be powerless, because such majorities in both 
houses presumably indicate a vast preponderance of 
popular opinion against him.^ The fact to be emphasized 
is, that in this case all " balance of powers " is gone. 
The legislature has swallowed up the executive, in virtue 
of the principle from which this discussion started, viz. 
that the executive is in free States only an agent who 
may be so limited by express and minute commands 
as to have no volition left him. 

The strength of Congress consists in the right to 
pass statutes ; the strength of the President in his right 
to veto them. But foreign affairs, as we have seen, 
cannot be brought within the scope of statutes. How 
then was the American legislature to deal with them? 
There were two courses open. One was to leave foreign 
affairs to the executive, as in England, giving Congress 
the same indirect control as the English Parliament 
enjoys over the Crown and ministry. This course could 

^ An exceptionally experienced observer (Mr. James Q. Blaine) says 
{Twenty Years of Congress, vol. i p. 185) : ** The practical deduction as to the 
working of our governmental system from the whole of that troublous 
period (the contest between President Johnson and Congress) is that two- 
thirds of each House united and stimulated to one end can practically 
neutralize the executive power of the government, and lay down its policy 
in defiance of the efforts and the opposition of the President" 



CHAP. XXI LEGISLATURE AND EXECUTIVE 301 

not be taken, because the President is independent of 
Congress and irremovable during his term. The other 
course would have been for Congress, like a Greek 
assembly, to be its own foreign office, or to create a 
foreign affairs committee of its members to handle 
these matters. As the objections to this course, which 
would have excluded the chief magistrate from functions 
naturally incidental to his position as official representa- 
tive of the nation, were overwhelmingly strong, a com- 
promise was made. The initiative in foreign policy 
and the conduct of negotiations were left to him, but the 
right of declaring war was reserved to Congress, and 
that of making treaties to one, the smaller and more 
experienced, branch of the legislature. A measure of 
authority was thus suffered to fall back to the executive 
which would have served to raise materially his position 
had foreign questions played as large a part in American 
politics as they have in French or English. They have, 
however, been comparatively unimportant, especially 
since 1815. 

It may be said that there was yet another source 
whence the executive might draw strength to support 
itself against the legislature, viz. those functions which 
the Constitution, deeming them necessarily incident to 
an executive, has reserved to the President and excluded 
from the competence of Congress. But examination 
shows that there is scarcely one of these which the long 
arm of legislation cannot reach. The President is 
commander-in-chief of the army, but the numbers and 
organization of the army are fixed by statute. The 
President makes appointments, but the Senate has the 
right of rejecting them, and Congress may pass Acts 
specifying the qualifications of appointees, and reducing 
the salary of any official except the President himself 



302 THE NATIONAL GOVERNMENT parti 

and the judges. The real strength of the executive 
therefore, the rampart from behind which it can resist 
the aggressions of the legislature, is in ordinary times 
the veto power. ^ In other words, it survives as an 
executive in virtue not of any properly executive function, 
but of the share in legislative functions which it has 
received ; it holds its ground by force, not of its separa- 
tion from the legislature, but of its participation in a 
right properly belonging to the legislature.^ 

An authority which depends on a veto capable of 
being over-ruled by a two-thirds majority may seem 
frail. But the experience of a century has shown that, 
owing to the almost equal strength of the two great 
parties, the Houses often diflfer, and there is rarely a 
two -thirds majority of the same colour in both. 
Hence the Executive has enjoyed some independence. 
He is strong for defence, if not for attack. Congress 
can, except within that narrow sphere which the Con- 
stitution has absolutely reserved to him, baffle the 
President, can interrogate, check, and worry his min- 
isters. But it can neither drive him the way it wishes 

1 In moments of public danger, as during the War of Secession, the 
executive of course springs up into immense power, partly because the 
command of the army is then of the first importance ; partly because the 
legislature, feeling its unfitness for swift and secret decisions, gives free 
rein to the Executive, and practically puts its law-making powers at his 
disposal. 

2 What is said here of the national executive and national legislature 
is a fortiori true of the State executive and State legislatures. The State 
governor has no power of independent action whatever, being checked at 
every step by State statutes, and his discretion superseded by the minute 
directions which those statutes contain. He has not even ministers, 
because the other chief officials of the State are chosen, not by himself, 
but by popular vote. He has very little patronage ; and he has no 
foreign policy at alL The State legislature would therefore prevail 
against him in everything, were it not for his veto and for the fact that 
the legislature is now generally restrained (by the provisions of the State 
constitution) from passing laws on many topics. (See post^ Chapters 
XXXVII-XLV. 



CHAP. XXI LEGISLATURE AND EXECUTIVE 303 

him to go, nor dismiss them for disobedience or incom- 
petence. 

An individual man has some great advantages in 
combating an assembly. His counsels are less dis- 
tracted. His secrets are better kept. He may sow 
discord among his antagonists. He can strike a more 
sudden blow. Julius Caesar was more than a match 
for the Senate, Cromwell for the Long Parliament, 
even Louis Napoleon for the French Assembly of 1851. 
Hence, when the President happens to be a strong 
man, resolute, prudent, and popular, he may well 
hope to prevail against a body whom he may divide 
by the dexterous use of patronage, may weary out by 
inflexible patience, may overawe by winning the admira- 
tion of the masses, always disposed to rally round a 
striking personality. But in a struggle extending over 
a long course of years an assembly has advantages over 
a succession of officers, especially of elected officers. 
The Koman Senate encroached on the consuls, though it 
was neither a legislature nor representative; the Car- 
thaginian Councils encroached on the Suffetes ; the 
Venetian Councils encroached on the Doge. Men come 
and go, but an assembly goes on for ever ; it is immortal, 
because while the members change, the policy, the 
passion for extending its authority, the tenacity in 
clinging to what has once been gained, remain persistent. 
A weak magistrate comes after a strong magistrate, and 
yields what his predecessor had fought for; but an 
assembly holds all it has ever won.^ Its pressure is 

^ This is stiU more conspicuously the case when the members of the 
executive government do not sit in the assembly. When they do, and lead 
it, their influence tends to restrain legislative encroachments. Even the 
presence of persons who are likely to be soon caUed on to form the execu- 
tive has its influence. In 1886 a resolution moved in the House of 
Commons declaring that the executive ought to make no treaty without 



304 THE NATIONAL GOVERNMENT parti 

steady and continuous ; it is always, by a sort of natural 
process, expanding its own powers and devising new 
methods for fettering its rival. Thus Congress, though 
it is no more respected or loved by the people now 
than it was seventy years ago, though it has developed 
no higher capacity for promoting the best interests 
of the State, has succeeded in occupying nearly all the 
ground which the Constitution left debatable between 
the President and itself ; ^ and would, did it possess a 
better internal organization, be even more plainly than 
it now is the supreme power in the government. 

In their effort to establish a balance of power, the 
framers of the Constitution so far succeeded that 
neither power has subjected the other. But they 
underrated the inconveniences which arise from the dis- 
junction of the two chief organs of government. They 
relieved the Administration from a duty which European 
ministers find exhausting and hard to reconcile with 
the proper performance of administrative work — the 
duty of giving attendance in the legislature and taking 
the lead in its debates. They secured continuity of 
executive policy for four years at least, instead of leav- 
ing government at the mercy of fluctuating majorities 
in an excitable assembly. But they so narrowed the 
sphere of the executive as to prevent it from leading 
the country, or even its own party in the country. 

the previous consent of Parliament was resisted by the leaders of the 
Opposition as well as by the Government, partly because the former, 
feeling they might at any time be called back to power, had i)er8onal 
as well as public grounds for not desiring to see the executive fettered. 

1 The modification (in 1869) and repeal (in 1886) of the Tenure of 
Office Act (see above, p. 81) are scarcely instances to the contrary, because 
that Act, even if constitutional, had proved difficult to work. 

Justice Miller observes (Oration at the Centennial Celebration of the 
framing of the Constitution, p. 20), " No department of the government 
has been more shorn of its just powers or crippled in the exercise of them 
than the Presidency." 



CHAP. XXI LEGISLATURE AND EXECUTIVE 305 

They sought to make members of Congress independent, 
but in doing so they deprived them of some of the means 
which European legislators enjoy of learning how to 
administer, of learning even how to legislate in admin- 
istrative topics. They condemned them to be architects 
without science, critics without experience, censors with- 
out responsibility. 



VOL. 1 



CHAPTER XXII 



THE FEDERAL COURTS 



When in 1788 the loosely confederated States of North 
America united themselves into a nation, national 
tribunals were felt to be a necessary part of the national 
government. Under the Confederation there had existed 
no means of enforcing the treaties made or orders 
issued by the Congress, because the courts of the 
several States owed no duty to that feeble body, 
and had little will to aid it. Now that a Federal 
legislature had been established, whose laws were to 
bind directly the individual citizen, a Federal judi- 
cature was evidently needed to interpret and apply 
these laws, and to compel obedience to them. The 
alternative would have been to entrust the en- 
forcement of the laws to State courts. But State 
courts were not fitted to deal with matters of a quasi- 
international character, such as admiralty jurisdiction 
and rights arising under treaties. They supplied 
no means for deciding questions between difierent 
States. They could not be trusted to do complete 
justice between their own citizens and those of an- 
other State. Being under the control of their own 
State governments, they might be forced to disregard 
any Federal law which the State disapproved ; or even 



/ 

/ 



CHAP. XXII THE FEDERAL COURTS 30? 

if they admitted its authority, might fail in the zeal 
or the power to give due eflfect to it. And being 
authorities co-ordinate with and independent of one 
another, with no common court of appeal placed over 
them to correct their errors or harmonize their views, 
they would be likely to interpret the Federal Con- 
stitution and statutes in diflferent senses, and make 
the law uncertain by the variety of their decisions. 
These reasons pointed imperatively to the establish- 
ment of a new tribunal or set of tribunals, alto- 
gether detached from the States, as part of the 
machinery of the new government. Side by side of the 
thirteen (now thirty-eight) diflferent sets of State courts, 
whose jurisdiction under State laws and between their 
own citizens was left untouched, there arose a new 
and complex system of Federal courts. The Constitu- 
tion drew the outlines of the system. Congress per- 
fected it by statutes ; and as the details rest upon these 
statutes, Congress retains the power of altering them. 
Few American institutions are better worth studying 
than this intricate judicial machinery : few deserve more 
admiration for the smoothness of their working : few 
have more contributed to the peace and well-being of 
the country. 

The Federal courts fall into three classes : — 

The Supreme court, which sits at Washington. 

The Circuit courts. 

The District courts. 

The Supreme court is directly created by Art. iii. 
§ 1 of the Constitution, but with no provision as to 
the number of its judges. Originally there were six ; 
at present there are nine, a chief justice, with a salary 
of $10,500 (£2100), and eight associate justices (salary 
$10,000). The justices are nominated by the President 



3o8 THE NATIONAL GOVERNMENT parti 

and confirmed by the Senate. They hold office during 
good behaviour, i.e. they are removable only by im- 
peachment. They have thus a tenure even more secure 
than that of English judges, for the latter may be 
removed by the Crown on an address from both Houses 
of Parliament.^ Moreover, the English statutes secure 
the permanence only of the judges of the Supreme 
court of judicature, not also of judges of county or 
other local courts, while the provisions of the American 
Constitution are held to apply to the inferior as well 
as the superior Federal judges. The Fathers of the 
Constitution were extremely anxious to secure the 
independence of their judiciary, regarding it as a bul- 
wark both for the people and for the States against 
aggressions of either Congress or the President.' They 
affirmed the life tenure by an unanimous vote in the 
Convention of 1787, because they deemed the risk of 
the continuance in office of an incompetent judge a 
less evil than the subserviency of all judges to the legis- 
lature, which might flow from a tenure dependent on 
legislative will. The result has justified their expecta- 
tions. The judges have shown themselves independent 
of Congress and of party, yet the security of their posi- 
tion has rarely tempted them to breaches of judicial 
duty. Impeachment has been four times resorted to, 
once only against a justice of the Supreme court, and 

1 12 and 13 William III., cap. 2.; cf. 1 George III., cap. 23. The 
occasional resistance of the parliament of Paris, whose members held office 
for life, to the French Crown may probably have confirmed the Convention 
of 1787 in its attachment to this English principle. 

2 See Hamilton in Federalist, No. Ixxviii. : " The standard of good 
behaviour for the continuance in office of the judicial magistracy is 
certainly one of the most valuable of the modem improvements in the 
practice of government. In a monarchy it is an exceUent barrier to the 
despotism of the prince ; in a republic it is a no less excellent barrier to 
the encroachments and oppressions of the legislative body." 



CHAP. XXII THE FEDERAL COURTS 309 

then unsuccessfully.^ Attempts have been made, be- 
ginning from Jefferson, who argued that judges should 
hold office for terms of four or six years only, to alter 
the tenure of the Federal judges, as that of the State 
judges has been altered in most States ; but Congress has 
always rejected the proposed constitutional amendment. 

The Supreme court sits at Washington from October 
till July in every year. The presence of six judges is 
required to pronounce a decision, a rule which, by pre- 
ventinof the division of the court into two or more 
branches, retards the despatch of business, though it has 
the advantage of securing a thorough consideration of 
every case. The sittings are held in the Capitol, in the 
chamber formerly occupied by the Senate, and the 
justices wear black gowns, being not merely the only 
public officers, but the only non-ecclesiastical persons of 
any kind whatever within the bounds of the United States 
who use any official dress. ^ Every case is discussed by the 
whole body twice over, once to ascertain the opinion 
of the majority, which is then directed to be set forth 
in a written judgment; then again when that written 
judgment, which one of the judges has prepared, is 
submitted for criticism and adoption as the judgment 
of the court. 

The Circuit courts have been created by Congress 
under a power in the Constitution to establish " inferior 
courts." There are at present nine judicial circuits, in 
which courts are held annually. For each of these there 
has been appointed a Circuit judge (salary $6000), 

1 This was Samuel Chase of Maryland in 1804-5. The other three 
cases were of district Federal judges. Two were convicted (one of violence, 
apparently due to insanity, the other of rebellion), the third was acquitted. 

2 Save that of late years in one or two universities the president and 
professors have taken to wearing academic gowns on great occasions, such 
as the annual Commencement. 



3IO THE NATIONAL GOVERNMENT parti 

and to each there is also allotted one of the justices of 
the Supreme court. The Circuit court may be held 
either by the Circuit judge alone, or by the Supreme 
court Circuit justice alone, or by both together, or by 
either sitting along with the District judge (hereafter 
mentioned) of the district wherein the particular circuit 
court is held. An appeal lies from the Circuit court to 
the Supreme court, except in certain cases where the 
amount in dispute is small. 

The District courts are the third and lowest class of 
Federal tribunals. They are at present fifty -five in 
number, and their judges receive salaries of itom $3500 
to $5000 (£700 to £1000) per annum. The Constitution 
does not expressly state whether they and the Circuit 
judges are to be appointed by the President and Senate 
like the members of the Supreme court; but it has 
always been assumed that such was its intention, and 
the appointments are so made accordingly. 

For the purpose of dealing with the claims of 
private persons against the Federal government there 
has been established in Washington a special tribunal 
called the Court of Claims, with five justices (salary 
$4500), from which an appeal lies direct to the Supreme 
court. 

The jurisdiction of the Federal courts extends to 
the following classes of cases, on each of which I say 
no more than what seems absolutely necessar}" to 
explain their nature.^ All other cases have been left to 

1 " All the enumerated cases of Federal cognizance are those which 
touch the safety, peace, and sovereignty of the nation, or which presume 
that State attachments, State prejudices, State jealousies, and State 
interests might sometimes obstruct or control the regular administration 
of justice. The appellate power in all these cases is founded on the 
clearest principles of policy and wisdom, and is necessary in order to 
preserve uniformity of decision upon all subjects within the purview of 
the Constitution." — Kenfs Commentaiies (Holmes' edition), vol. i. p. 320. 



CHAP. XXII THE FEDERAL COURTS 311 

the State courts, from which there does not lie (save as 
hereinafter specified) any appeal to the Federal courts. 

1. " Cases in law and equity arising under the con- 
stitution, the laws of the United States and treaties 
made under their authority." 

In order to enforce the supremacy of the national 
Constitution and laws over all State laws, it was neces- 
sary to place the former under the guardianship of the 
naln/ Judiciary. This pro^ion^Lordiogly bring, 
before a Federal court every cause in which either party 
to a suit relies upon any Federal enactment. It entitles 
a plaintijQF who bases his case on a Federal statute to 
bring his action in a Federal court : it entitles a defend- 
ant who rests his defence on a Federal enactment to 
have the action, if originally brought in a State court, 
removed to a Federal court. ^ But, of course, if the 
action has originally been brought in a State court, there 
is no reason for removing it unless the authority of the 
Federal enactment can be supposed to be questioned. 
Accordingly, the rule laid down by the Judiciary Act 
(1789) provides "for the removal to the supreme court 
of the United States of the final judgment or decree in 
any suit, rendered in the highest court of law or equity 
of a State in which a decision could be had, in which is 
drawn in question the validity of a treaty or statute of, 
or authority exercised under, the United States, and the 
decision is against their validity ; or where is drawn in 
question the validity of a statute of, or an authority 
exercised under, any State, on the ground of their being 
repugnant to the Constitution, treaties, or laws of the 
United States, and the decision is in favour of their 
validity; or where any title, right, privilege, or im- 

^ The removal may be before or after judgment given, and in the 
latter event, by way of appeal or by writ of error. 



312 THE NATIONAL GOVERNMENT parti 

munity is claimed under the Constitution, or any treaty 
or statute of a commission held or authority exercised 
under the United States, and the decision is against the 
title, right, privilege, or immunity specially set up or 
claimed by either party under such Constitution, treaty, 
statute, commission, or authority. But to authorize the 
removal under that act, it must appear by the record, 
either expressly or by clear and necessaiy intendment, 
that some one of the enumerated questions did arise in 
the State court, and was there passed upon. It is not 
sufficient that it might have arisen or been appKcable. 
And if the decision of the State court is in favour of 
the right, title, privilege, or exemption so claimed, the 
Judiciary Act does not authorize such removal, neither 
does it where the validity of the State law is drawn in 
question, and the decision of the State court is against 
its validity." ^ 

The rule seems intricate, but the motive for it 
and the working of it are plain. Where in any legal 
proceeding a Federal enactment has to be construed or 
applied by a State court, if the latter supports the 
Federal enactment, i.e. considers it to govern the case, 
and applies it accordingly, the supremacy of Federal 
law is thereby recognized and admitted. There is there- 
* fore no reason for removing the case to a Federal tribunal. 
Such a tribunal could do no more to vindicate Federal 
authority than the State court has already done. But if 
the decision of the State court has been against the 
applicability of the Federal law, it is only fair that 
the party who suffers by the decision should be entitled 
to Federal determination of the point, and he has 

^ Cooley, ConstittUional Limitations, p. 16. For detAils regarding 
the removal of suits, and the restrictions when the amount in dispute is 
small, see Cooley, Principles of ConstittUional Law, p. 122 sqq, ; and see 
also the Act of 3d March 1887. 



CHAP. XXII THE FEDERAL COURTS 313 

accordingly an absolute right to cany it before the 
Supreme court. 

The principle of this rule is applied even to executive 
acts of the Federal authorities. If, for instance, a person 
has been arrested by a Federal officer, a State court has 
no jurisdiction to release him on a writ of habeas corpus ^ 
or otherwise to inquire into the lawfulness of his deten- 
tion by Federal authority, because, as was said by Chief- 
Justice Taney, " The powers of the general government 
and of the State, although both exist and are exercised 
within the same territorial limits, are yet separate and 
distinct sovereignties, acting separately and independ- 
ently of each other, within their respective spheres. 
And the sphere of action appropriated to the United 
States is as far beyond the reach of the judicial process 
issued by a State court as if the line of division was 
traced by landmarks and monuments visible to the eye."^ 

2. " Cases affecting ambassadors, other public minis- 
ters, and consuls." 

As these persons have an international character, it 
would be improper to allow them to be dealt with by a 
State court which has nothing to do with the national 
government, and for whose learning and respectability 
there may exist no such securities as those that sur- 
round the Federal courts. 

3. " Cases of admiralty and maritime jurisdiction." 
These are deemed to include not only prize cases but 

all maritime contracts, and all transactions relating to 
navigation, as well on the navigable lakes and rivers of 
the United States as on the high seas. 

4. *' Controversies to which the United States shall 
be a party." 

^ Ahleman v. Booth, 21 How. 516 ; and see Cooley, Constitutional 
Limitations, p. 429. 



314 THE NATIONAL GOVERNMENT parti 

This provision is obviously needed to protect the 
United States from being obliged to sue or be sued in a 
State court, to whose decision the national government 
could not be expected to submit. When a pecuniary 
claim is sought to be established against the Federal 
government, the proper tribunal is the Court of Claims. 

5. *' Controversies between two or more States, 
between a State and citizens of another State, between 
citizens of different States, between citizens of the same 
State claiming lands under grants of different States, 
and between a State, or the citizens thereof, and foreign 
states, citizens, or subjects." 

In all these cases a State court is likely to be, or at 
any rate to seem, a partial tribunal, and it is therefore 
desirable to vest the jurisdiction in judges equally 
unconnected with the plaintiff and the defendant. By 
securing recourse to an unbiassed and competent tribunal, 
the citizens of every State obtain better commercial 
facilities than they could otherwise count upon, for their 
credit will stand higher with persons belonging to other 
States if the latter know that their legal rights are under 
the protection, not of local and possibly prejudiced 
judges, but of magistrates named by the national 
government, and unamenable to local influences.^ 

One important part of the jurisdiction here conveyed 
has been subsequently withdrawn from the Federal 
judicature. When the Constitution was submitted to 
the people, a principal objection urged against it was 
that it exposed a State, although a sovereign common- 

^ Tliere are countries in Europe with which English merchants are 
unwilling to do business because they can seldom obtain justice from the 
courts against a native. Local feeling was, of course, much stronger in 
the America of 1787 than it is now. Englishmen who had claims against 
American citizens failed to obtain their enforcement from 1783 till the 
Federal courts were established in 1789. 



CHAP. XXII THE FEDERAL COURTS • 315 

wealth, to be sued by the individual citizens of some 
other State. That one State should sue another was 
perhaps necessary, for what other way could be dis- 
covered of terminating disputes ? But the power as well 
as the dignity of a State would be gone if it could be 
dragged into court by a private plaintiff. Hamilton 
(writing in the Federalist) met the objection by arguing 
that the jurisdiction-giving clause of the Constitution 
ought not to be so construed, but must be read as being 
subject to. the general doctrine that a sovereign body 
cannot be sued by an individual without its own consent, 
a doctrine not to be excluded by mere implication but 
only by express words/ However, in 1793 the Supreme 
court, in the famous case of Chisholm v. The State 
of Georgia,^ construed the Constitution in the very 
sense which Hamilton had denied, holding that an 
action did lie against Georgia at the suit of a private 
plaintiff; and when Georgia protested and refused to 
appear, the court proceeded (in 1794) to give judgment 
against her by default in case she should not appear and 
plead before a day fixed. Her cries of rage filled the 
Union, and brought other States to her help. An 
amendment (the eleventh) to the Constitution was 
passed through Congress and duly accepted by the 
requisite majority of the States, which declares that 
'' the judicial power of the United States shall not be 
construed to extend to any suit commenced or prosecuted 
against one of the United States by citizens of another 
State or by citizens or subjects of any foreign state." ^ 

1 Federalist, No. Ixxxi. The same view was contemporaneously 
maintained by John Marshall (afterwards Chief- Justice) in the Virginia ^i .// 
Convention of 1788. « 2 Ball. 419. ^ ' ^/ 

3 It has been held that the amendment applies only when a State is a ^ 
party to the record, and therefore does not apply to the case of a State 
holding shares in a corporation. Neither does it apply to appeals and 
writs of error. 






3i6 THE NATIONAL GOVERNMENT parti 

Under the protection of this amendment, not a few 
States have with impunity repudiated their debts. ^ 

The jurisdiction of the Supreme court is original in 
cases affecting ambassadors, and wherever a State is a 
party ; in other cases it is appellate ; that is, cases 
may be brought to it from the inferior Federal courts 
and (under the circumstances before mentioned) from 
State courts. The jurisdiction is in some matters ex- 
clusive, in others concurrent with that of the State 
courts. Upon these subjects there have arisen many 
difficult and intricate questions, which I must pass by, 
because they would be unintelligible without long ex- 
planations.^ One point, however, may be noted. The 
State courts cannot be invested by Congress with any 
jurisdiction, for Congress has no authority over them, 
and is not permitted by the Constitution to delegate 
any judicial powers to them. Hence the jurisdic- 
tion of a State court, wherever it is concurrent with 
that of Federal judges, is a jurisdiction which the court 
possesses of its own right, independent of the Consti- 
tution. And in some instances where congressional 
statutes have purported to impose duties on State 
courts, the latter have refused to accept and discharge 
them. 

The criminal jurisdiction of the Federal courts, which 

^ Quite recently (February 1, 1886), a decision has been pronounced 
requiring the State of Virginia to accept in payment of taxes coupons in 
terms made by her law so receivable, and attached to bonds which she had 
repudiated. The circumstances of this case are very intricate, but the 
above is the broad result. The decision was pronounced by five justices 
against four, the minority holding that the Eleventh Amendment must be 
taken to govern the case. 

2 The lawyer who is curious in such matters may be referred to 
Story's Commentaries on the ConstittUion (4th edition by Judge Cooley), 
chapter xxxviii., and to the judgments of Chief- Justice Marshall in the 
cases of Martin v. Hunter (1 Wheat. 304) and Cohens v. Virginia (6 
Wheat 406). 



CHAP. XXII i THE FEDERAL COURTS 317 



to^ 



extends to atlll oflfenees against Federal law, is purely 
statutory. //" T^e United States as such can have no 
common law. It derives its powers from the grant of 
the people made by the Constitution, and they are all to 
be found in the written law, and not elsewhere." ^ 

The procedure of the Federal courts is prescribed by 
Congress, subject to some few rules contained in the 
Constitution, such as those which preserve the right of 
trial by jury in criminal cases ^ and suits at common 
law.^ As " cases in law and equity " are mentioned, 
it is held that Congress could not accomplish such a 
fusion of law and equity as has been effected in several 
States of the Union, and was recently effected in 
England,* but must maintain these methods of pro- 
cedure as distinct, though administered by the same 
judges. 

The law applied in the Federal courts is of course 
first and foremost that enacted by the Federal legis- 
lature, which, when it is applicable, prevails against 
any State law. But very often, as for instance in suits 
between citizens of different States, Federal law does not, 
or does only in a secondary way, come in question. In 
such instances the first thing is to determine what law 
it is that ought to govern the case, each State having 
a law of its own ; and when this has been ascertained, 
it is applied to the facts, just as an English court would 
apply French or Scotch law in pronouncing on the 
validity of a marriage contracted in France or Scotland. 
In administering the law of any State (including its 
constitution, its statutes, and its common law, which in 
Louisiana is the civil law in its French form) the Federal 
courts ought to follow the decisions of the State courts, 

^ Cooley, Principles^ p. 131. ^ Art. iii. § 2. 

3 Amendment vii. § 1. "* By the Judicature Act, 1873. 



3i8 - THE NATIONAL GOVERNMENT parti 

treating those decisions as the highest authority on the 
law of the particular State. This doctrine is so fully 
applied that the Supreme court has even over-ruled its 
own previous determinations on a point of State law in 
order to bring itself into agreement with the view of 
the highest court of the particular State. Needless to 
say, the State courts follow the decisions of the Federal 
courts upon questions of Federal law.^ 

For the execution of its powera each Federal court 
has attached to it an officer called the United States 
marshal, corresponding to the sheriff in the State 
governments, whose duty it is to carry out its writs, 
judgments, and orders by arresting prisoners, levying 
execution, putting persons in possession, and so forth. 
He is entitled, if resisted, to call on all good 
citizens for help ; if they will not or cannot render 
it, he must refer to Washington and obtain the 
aid of Federal troops. There exists also in every 
judiciary district a Federal public prosecutor, called 
the United States district attorney, who institutes 
proceedings against persons transgressing Federal 
laws or evading the discharge of obligations to the 
Federal treasury. Both sets of officials are under 
the direction of the attorney-general, as head of the 
department of justice. They constitute a net -work 
of Federal authorities covering the whole territory 
of the Union, and independent of the officers of the 

^ " The judicial department of every government is the appropriate 
organ for construing the legislative acts of that government ... On this 
principle the construction given by this (the supreme) court to the Constitu- 
tion and laws of the United States is received by all as the true construc- 
tion ; and on the same principle the construction given by the courts of 
the various States to the legislative acts of those States is received as 
true, unless they come in conflict with the Constitution, laws, or treaties 
of the United States." — Marshall, C.-J., in Elmendorf v. Taylor^ 10 
Wheat. 109. 



CHAP. XXII THE FEDERAL COURTS • 319 

State courts and of the public prosecutors who repre- 
sent the State governments. Where a State maintains 
a gaol for the reception of Federal prisoners, the U.S. 
marshal delivers his prisoners to the State gaoler; 
where this provision is wanting, he must himself arrange 
for their custody. 

The French or English reader may ask how it is 
possible to work a system so extremely complex, under 
which every yard of ground in the Union is covered by 
two jurisdictions, with two sets of judges and two sets 
of officers, responsible to different superiors, their spheres 
of action divided only by an ideal line, and their action 
liable in practice to clash. The answer is that the 
system does work, and now, after a hundred years of 
experience, works smoothly. It is more costly than 
the simpler systems of France, Prussia, or England, 
though, owing to the small salaries paid, the expense 
falls rather on litigants than on the public treasury. 
But it leads to few conflicts or heart-burnings, because 
the key to all difficulties is found in the principle that 
wherever Federal law is applicable Federal law must pre- 
vail, and that every suitor who contends that Federal law 
is applicable is entitled to have the point determined by 
a Federal court. The acumen of the lawyers and judges, 
the wealth of accumulated precedents, make the solution 
of these questions of applicability and jurisdiction easier 
than a European practitioner can realize : while the 
law-abiding habits of the people and their sense that the 
supremacy of Federal law and jurisdiction works to the 
common benefit of the whole people, secure general 
obedience to Federal judgments. The enforcement of 
the law, especially the criminal law, in some parts of 
America leaves much to be desired ; but the difficulties 
which arise are now due not to conflicts between State 



320 THE NATIONAL GOVERNMENT parti 

and Federal pretensions but to other tendencies equally 
hostile to both authorities. 

A word in conclusion as to the separation of the 
judicial from the other two departments, a point on 
which the framers of the Constitution laid great stress. 
The functions of the legislature are more easily dis- 
tinguished from those of the judiciary than from 
those of the executive. The legislature makes the 
law, the judiciary applies it to particular cases by in- 
vestigating the facts and, when these have been ascer- 
tained, by declaring what rule of law governs them. 
Nevertheless, there are certain points in which the 
functions of the two departments touch, certain 
ground which is debatable between the judiciary 
on the one hand and the legislature on the other. 
In most countries the courts have grown out of the 
legislature ; or rather, the sovereign body, which, like 
Parliament, was originally both a law court and a 
legislature, has delivered over most of its judicial duties 
to other persons, while retaining some few to be still 
exercised by itself. 

In most points America has followed the principles 
and practice of England. Like England, she creates 
no separate administrative tribunals such as exist in the 
states of the European continent, but allows officials 
to be sued in or indicted before the ordinary courts. 
Like England, she has given the judges (i.e. the Federal 
judges) a position secured against the caprice ot the 
legislature or executive. Like England, she recognizes 
judicial decisions as law until some statute has set them 
aside. ^ In one respect she has improved on England — 
viz. in forbidding the legislature to exercise the powers 

1 Assuming the statute to be one within the competence of the legisla- 
ture which has passed it 



CHAP. XXII THE FEDERAL COURTS 321 

of a criminal court, by passing acts of attainder or 
of pains and penalties, measures still legal, though 
virtually obsolete, in England.^ In others, she stands 
behind England. England has practically ceased to use 
one branch of her Parliament as a court for the trial 
of impeachments. America still occasionally throws 
upon one House of Congress this function; which 
though it is ill suited to an ordinary court of justice, 
is scarcely better discharged by a political assembly. 
England has remitted to the courts of law the trial 
of disputed parliamentary elections ; America still 
reserves these for committees of Congress. Special 
and local bills which vest in private hands certain 
rights of the State, such as public franchises, or 
the power of taking private property against the 
owner's will, are, though in form exercises of legis- 
lative power, really fitter to be examined and settled 
by judicial methods than by the loose opinion, the 
private motives, the lobbying, which determine legis- 
lative decisions where the control of public opinion 
is insufficiently provided for. England accordingly, 
though she refers such bills to committees of Par- 
liament, directs these committees to apply a quasi - 
judicial procedure, and to decide according to the 
evidence tendered. America takes no such securities, 
but handles these bills like any others. Here there- 
fore we see three pieces of ground debatable between 
the legislature and the judiciary. All of them 
originally belonged to the legislature. All in America 
still belong to it. England, however, has abandoned 
the first, has delivered over the second to the judges, 

1 Neither House of Congress can punish a witness for contempt, after 
the fashion of the British Parliament {Kilboum v. Thompsony 103 U.S. p. 
168). See note to Chapter XXXIII. post. , 

VOL. I Y 



322 THE NATIONAL GOVERNMENT parti 

and treats the thitd as matter to be dealt with by 
judicial rather than legislative methods. Such points 
of diflference are worth noting, because the impression 
has prevailed in Europe that America is the country 
in which the province of the judiciary has been most 
widely extended. 



•CHAPTER XXIII 

THE COURTS AND THE CONSTITUTION 

No feature in the government of the United States has 
awakened so much curiosity in the European mind, 
caused so much discussion, received so much admira- 
tion, and been more frequently misunderstood, than the 
duties assigned to the Supreme Court and the functions 
which it dLharges in guLing the ark of the Constitu- 
tion. Yet there is really no mystery about the matter. 
It is not a novel device. It is not a complicated 
device. It is the simplest thing in the world if ap- 
proached from the right side. 

In England and many other modem States there 
is no diflFerence in authority between one statute and 
another. All are made by the legislature : all can be 
changed by the legislature. What are called in Eng- 
land constitutional statutes, such as Magna Charta, the 
Bill of Eights, the Act of Settlement, the Acts of 
Union with Scotland and Ireland, are merely ordinary 
laws, which could be repealed by Parliament at any 
moment in exactly the same way as it can repeal a 
highway act or lower the duty on tobacco. The 
habit has grown up of talking of the British Con- 
stitution as if it were a fixed and definite thing. But 
there is in England no such thing as a Constitution 



324 THE NATIONAL GOVERNMENT parti 

apart from the rest of the law : there is merely a mass 
of law, consisting partly of statutes and partly of decided 
cases and accepted usages, in conformity with which the 
government of the country is carried on from day to 
day, but which is being constantly modified by fresh 
statutes and cases. The same thing existed in ancient 
Rome, and everywhere in Europe a century ago. It 
is, so to speak, the "natural," and used to be the 
normal, condition of things in all countries, free or 
despotic. 

The condition of America is wholly difierent. There 
the name Constitution designates a particular instru- 
ment adopted in 1788, amended in some points since, 
which is the foundation of the national government. 
This Constitution was ratified and made binding, not 
by Congress, but by the people acting through con- 
ventions assembled in the thirteen States which then 
composed the Confederation. It created a legislature 
of two houses ; but that legislature, which we call Con- 
gress, has no power to alter it in the smallest particular. 
That which the people have enacted, the people only 
can alter or repeal. 

Here therefore we observe two capital differences 
between England and the United States. The former 
has left the outlines as well as the details of her system 
of government to be gathered from a multitude of 
statutes and cases. The latter has drawn them out in 
one comprehensive fundamental enactment. The former 
has placed these so-called constitutional laws at the 
mercy of her legislature, which can abolish when it 
pleases any institution of the country, the Crown, the 
House of Lords, the Established Church, the House 
of Commons, Parliament itself.^ The latter has placed 

^ Parliament of course cannot restrict its own powers by any par- 



CHAP. XXIII THE COURTS AND THE CONSTITUTION 325 

her Constitution altogether out of the reach of Congress, 
providing a method of Amendment whose difficulty is 
shown by the fact that it has been very sparingly used. 

In England Parliament is omnipotent. In America 
Congress is doubly restricted. It can make laws only 
for certain purposes specified in the Constitution, and 
in legislating for these purposes it must not transgress 
any provision of the Constitution itself. The stream 
cannot rise above its source. 

Suppose, however, that Congress does so transgress, 
or does overpass the specified purposes. It may do 
so intentionally : it is likely to do so inadvertently. 
What happens ? If the Constitution is to be respected, 
there must be some means of securing it against Con- 
gress. If a usurpation of power is attempted, how is it 
to be checked ? If a mistake is committed, who sets it 
right ? 

The point may be elucidated by referring it to a 
wider category, familiar to lawyers and easily compre- 
hensible by laymen, that of acts done by an agent for 
a principal. If a landowner directs his bailiff* to collect 
rents for him, or to pay debts due to tradesmen, the 
bailiff has evidently no authority to bind his employer 
by any act beyond the instructions given him, as, for 
instance, by contracting to buy a field. If a manu- 
facturer directs his foreman to make rules for the hours 
of work and meals in the factory, and the foreman 

ticular Act, because that Act might be repealed in a subsequent 
session, and indeed any subsequent Act inconsistent with any of its 
provisions repeals tp«o fado that provision. (For instance, the Act of 
Union with Scotland (6 Anne, c. 11) declared certain provisions of the 
Union, for the establishment of Presbyterian church government in Scot- 
land, to be " essential and fundamental parts of the Union," but some of 
those provisions have been altered by subsequent statutes.) Parliament, 
could, however, extinguish itself by legally dissolving itself, leaving no 
legal means whereby a subsequent Parliament could be summoned. 



326 THE NA TIONAL GO VERNMENT part i 

makes rules not only for those purposes, but also pre- 
scribing what clothes the workmen shall wear and 
what church they shall attend, the latter rules have 
not the force of the employer's will behind them, and 
the workmen are not to be blamed for neglecting 
them. 

The same principle applies to public agents. In 
every country it happens that acts are directed to be 
done and rules to be made by bodies which are in the 
position of agents, i.e. which have received from some 
superior authority a limited power of acting and of 
rule-making, a power to be used only for certain pur- 
poses or under certain conditions. Where this power 
is duly exercised, the act or rule of the subordinate body 
has all the force of an act done or rule made by the 
superior authority, and is deemed to be made by it. 
And if the latter be a law-making body, the rule of the 
subordinate body is therefore also a law. But if the 
subordinate body attempts to transcend the power com- 
mitted to it, and makes rules for other purposes or 
under other conditions than those specified by the 
superior authority, these rules are not law, but are null 
and void. Their validity depends on their being within 
the scope of the law-making power conferred by the 
superior authority, and as they have passed outside 
that scope they are invalid. They do not justify any 
act done under them forbidden by the ordinary law. 
They ought not to be obeyed or in any way regarded 
by the citizens, because they are not law. 

The same principle applies to acts done by an 
executive oflBcer beyond the scope of his legal authority. 
In free countries an individual citizen is justified 
in disobeying the orders of a magistrate if he cor- 
rectly thinks these orders to be in excess of the 



CHAP, xxiii THE COURTS AND THE CONSTITUTION 327 

magistrate's legal power, because in that case they are 
not really the orders of a magistrate, but of a private 
person affecting to act as a magistrate. In England, 
for instance, if a secretary of state, or a police constable, 
does any act which the citizen affected by it rightly 
deems unwarranted, the citizen may resist, by 
force if necessary, relying on the ordinary courts 
of the land to sustain him. This is a consequence 
of the English doctrine that all executive power 
is strictly limited by the law, and is indeed a corner- 
stone of English Uberty.^ It is applied even as against 
the dominant branch of the legislature. If the House 
of Commons should act in excess of the power which 
the law and custom of Parliament has secured to it, a 
private individual may resist the officers of the House 
and the courts will protect him by directing him 
to be acquitted if he is prosecuted, or, if he is 
plaintiff in a civil action, by giving judgment in his 
favour. 

An obvious instance of the way in which rules or 
laws made by subordinate bodies are treated is afforded 
by the bye-laws made by an English railway company 
or municipal corporation under powers conferred by an 
Act of Parliament. So long as these bye- laws are 
within the scope of the authority which the Act of 
Parliament has given, they are good, i.e. they are laws, 
just as much as if enacted in the Act. If they go 
beyond it, they are bad, that is to say, they bind no- 
body and cannot be enforced. If a railway company 

^ See as to the dififerent doctrine and practice of the European con- 
tinent, and particularly as to the "administrative law" of France, the 
instructive remarks of Mr. Dicey in his Law of the GonstittUion, The 
view he there takes of the relation of the Federal Constitution to Con- 
gress coincides in most points with that presented in the present chapter, 
which, however, was written before his book appeared. 



328 THE NATIONAL GOVERNMENT parti 



which has received power to make bye-laws imposing 
fines up to the amount of forty shillings, makes a bye- 
law punishing any person who enters or quits a train in 
motion with a fine of fifty shillings or a week's im- 
prisonment, that bye-law is invalid, that is to say, it is 
not law at all, and no magistrate can either imprison or 
impose a fine of fifty shillings on a person accused of 
contravening it. If a municipal corporation has been 
by statute empowered to enter into contracts for the 
letting of lands vested in it, and directed to make 
bye -laws, for the purpose of letting, which shall 
provide, among other things, for the advertising of all 
lands intended to be let, and if it makes a bye-law in 
which no provision is made for advertising, and under 
that bye-law contracts for the letting of a piece of land, 
the letting made in pursuance of this bye-law is void, 
and conveys no title to the purchaser. All this is obvious 
to a lay as well as to a legal mind ; and it is no less 
obvious that the question of the validity of the bye- 
law, and of what has been done under it, is one to be 
decided not by the municipal corporation or company, 
but by the courts of justice of the land. 

Now, in the United States the position of Congress 
may for this purpose be compared to that of an English 
municipal corporation or railway company. The supreme 
law-making power is the People, that is, the qualified 
voters, acting in a prescribed way. The people have by 
their supreme law, the Constitution, given to Congress 
a delegated and limited power of legislation. Every 
statute passed under that power conformably to the 
Constitution has all the authority of the Constitution 
behind it. Any statute passed which goes beyond that 
power is invalid, and incapable of enforcement. It is in 
fact not a statute at all, because Congress in passing it 



CHAP. XXIII THE COURTS AND THE CONSTITUTION 329 



was not really a law-making body, but a mere group 
of private persons. 

There is of course this enormous diflFerence between 
Congress and any subordinate law-making authority in 
England, that Congress is supreme within its proper 
sphere, the people having no higher permanent organ to 
override or repeal such statutes as Congress may pass 
within that sphere ; whereas in England there exists in 
Parliament a constantly present supervising authority, 
which may at any moment cancel or modify what any sub- 
ordinate body may have enacted, whether within or with- 
out the scope of its delegated powers. This is a momentous 
distinction. But it does not affect the special point 
which I desire to illustrate, viz. that a statute passed 
by Congress beyond the scope of its powers is of no 
more effect than a bye -law made ultra vires by an 
English municipality. There is no mystery so far : 
there is merely an application of the ordinary principles 
of the law of agency. But the question remains. 
How and by whom, in case of dispute, is the validity 
or invalidity of a statute to be determined ? 

Such determination is to be effected by setting the 
statute side by side with the Constitution, and consider- 
ing whether there is any discrepancy between them. 
Is the purpose of the statute one of the purposes men- 
tioned or implied in the Constitution ? Does it in 
pursuing that purpose contain anything which violates 
any clause of the Constitution? Sometimes this is a 
simple question, which an intelligent layman may 
answer. More frequently it is a difficult one, which 
needs not only the subtlety of the trained lawyer, but 
a knowledge of former cases which have thrown light 
on the same or a similar point. In any event it is an 
important question, whose solution ought to proceed 



330 THE NATIONAL GOVERNMENT parti 

from a weighty authority. It is a question of interpre- 
tation, that is, of determining the true meaning both 
of the superior law and of the inferior law, so as to 
discover whether they are inconsistent. 

Now the interpretation of laws belongs to courts 
of justice. A law implies a tribunal, not only in order to 
direct its enforcement against individuals, but to adjust 
it to the facts, i.e. to determine its precise meaning and 
apply that meaning to the circumstances of the particular 
case. The legislature, which can only speak generally, 
makes every law in reliance on this power of interpreta- 
tion. It is therefore obvious that the question, whether a 
congressional statute offends against the Constitution, 
must be determined by the courts, not merely because it 
is a question of legal construction, but because there is 
nobody else to determine it. Congress cannot do so, 
because Congress is a party interested. If such a body 
as Congress were permitted to decide whether the acts 
it had passed were constitutional, it would of course 
decide in its own favour, and to allow it to decide would 
be to put the Constitution at its mercy. The President 
cannot, because he is not a lawyer, and he also may be 
personally interested. There remain only the courts, 
and these must be the National or Federal courts, 
because no other courts can be relied on in such cases. 
So far again there is no mystery about the matter. 

Now, however, we arrive at a feature which compli- 
cates the facts, though it introduces no new principle. 
The United States is a federation of commonwealths, 
each of which has its own constitution and laws. The 
Federal Constitution not only gives certain powers to 
Congress, as the national legislature, but recognizes 
certain powers in the States, in virtue whereof their 
respective peoples have enacted fundamental State laws 



CHAP. XXIII THE COURTS AND THE CONSTITUTION 331 

(the State constitutions) and have enabled their respec- 
tive legislatures to pass State statutes. However, as 
the nation takes precedence of the States, the Federal 
Constitution, which is the supreme law of the land 
everywhere, and the statutes duly made by Congress 
under it, are preferred to all State constitutions and 
statutes ; and if any conflict arise between them, the 
latter must give way. The same phenomenon therefore 
occurs as in the case of an inconsistency between the 
Constitution and a congressional statute. Where it is 
shown that a State constitution or statute infringes either 
the Federal Constitution or a Federal (i.e. congressional) 
statute, the State constitution or statute must be held 
and declared invalid. And this declaration must, of 
course, proceed fix)m the courts, nor solely from the 
Federal courts ; because when a State court decides 
against its own statutes or constitution in favour of a 
Federal law, its decision is final. ^ 

It will be observed that in all this there is no con- 
flict between the law courts and any legislative body. 
The conflict is between different kinds of laws. The 
duty of the judges is as strictly confined to the inter- 
pretation of the laws cited to them as it is in England 
or France ; and the only difference is that in America 
there are laws of four different degrees of authority, 
whereas in England all laws (excluding mere bye-laws. 
Privy Council ordinances, etc.) are equal because all pro- 
ceed from Parliament. These four kinds of American 
laws are : — 

I. The Federal Constitution. 
XL Federal statutes. 

^ When the State court decides against the applicability of a 
Federal law the case may be removed to a Federal court. See above, 
p. 311. 



332 THE NATIONAL GOVERNMENT parti 



III. State constitutions. 

IV. State statutes.^ 

The American law court therefore does not itself enter 
on any conflict with the legislature. It merely secures to 
each kind of law its due authority. It does not even pre- 
side over a conflict and decide it, for the relative strength 
of each kind of law has been settled already. All the 
court does is to point out that a conflict exists between 
two laws of different degrees of authority. Then the 
question is at an end, for the weaker law is extinct. 

This is the abstract statement of the matter ; but 
there is also an historical one. Many of the American 
colonies received charters from the British Crown, 
which created or recognized colonial assemblies, and 
endowed these with certain powers of making laws for 
the colony. Such powers were of course limited, partly 
by the charter, partly by usage, and were subject to the 
superior authority of the Crown or of the British Parlia- 
ment. Questions sometimes arose in colonial days 
whether the statutes made by these assemblies were in 
excess of the powers conferred by the charter ; and if 
the statutes were found to be in excess, they were held 
invalid by the courts, that is to say, in the first instance, 
by the colonial courts, or, if the matter was carried to 
England, by the Privy Council.^ 

^ Of these, the Federal Constitution prevails against all other laws. 
Federal statutes, if made in pursuance of and confonnably to the Consti- 
tution, prevail against III. and IV. If in excess of the powers granted by 
the Constitution, they are wholly invalid. A State Constitution yields to 
I. and II., but prevails against the statutes of the State. 

2 The same thing happens even now as regards the British colonies. 
The question was lately argued before the Privy Council whether the 
legislature of the Dominion of Canada, created by the British North 
America Act of 1867 (an imperial statute), had power to extinguish the 
right of appeal from the supreme court of Canada to the British Queen in 
council. 



CHAP. XXIII THE COURTS AND THE CONSTITUTION -^n 

When the thirteen American colonies asserted their 
independence in 1776, they replaced these old charters 
by new constitutions/ and by these constitutions en- 
trusted their respective legislative assemblies with cer- 
tain specified and limited legislative powers. The same 
question was then liable to recur with regard to a statute 
passed by one of these assemblies. If such a statute 
was in excess of the power which the State constitution 
conferred on the State legislature, or in any way 
transgressed the provisions of that constitution, it 
was invalid, and acts done under it were void. The 
question, like any other question of law, came for de- 
cision before the courts of the State. Thus, in 1786, 
the supreme court of Rhode Island held a statute of the 
legislature void, on the ground that it made a penalty 
collectible on summary conviction, without trial by jury; 
the colonial charter, which was then still in force as the 
constitution of the State, having secured the right of 
trial by jury in all cases. ^ When the Constitution 6f 
the United States came into operation in 1789, and 
was declared to be paramount to all State constitu- 
tions and State statutes, no new principle was intro- 
duced; there was merely a new application, as be- 
tween the nation and the States, of the old doctrine 
that a subordinate and limited legislature cannot 
pass beyond the limits fixed for it. It was clear, 
on general principles, that a State law incompatible 
with a Federal law must give way ; the only question 
was : What courts are to pronounce upon the ques- 

^ Connecticut and Rhode Island, however, went on under the old 
charters, with which they were well content See as to this whole sub- 
ject, Chapter XXXVII. in VoL II., on State Constitutions. 

2 See as to this interesting case i^refvdt v. Weedo7i\ the first in which 
a legislative act was declared unconstitutional for incompatibility with a 
State constitution, Cooky's Constitutional Limitations, p. 106 note. 



334 THE NATIONAL GOVERNMENT parti 

tion whether such incompatibility exists ? Who is to 
decide whether or no the authority given to Congress 
has been exceeded, and whether or no the State law 
contravenes the Federal Constitution or a Federal 
statute ? 

In 1789 the only pre-existing courts were the State 
courts. If a case coming before them raised the point 
whether a State constitution or statute was inconsistent 
with the Federal Constitution or a statute of Congress, 
it was their duty to decide it, like any other point of 
law. But their decision could not safely be accepted as 
final, because, being themselves the offspring of, and 
amenable to the State governments, they would natur- 
ally tend to uphold State laws against the Federal Consti- 
tution or statutes. Hence it became necessary to call 
in courts created by the central Federal authority and co- 
extensive with it — that is to say, those Federal courts 
which have been already described. The matter seems 
complicated, because we have to consider not only the 
superiority of the Federal Constitution to the Federal 
Congress, but also the superiority of both the Federal 
Constitution and Federal statutes to all State laws. 
But the principle is the same and equally simple in 
both sets of cases. Both are merely instances of the 
doctrine, that a law-making body must not exceed its 
powers, and that when it has attempted to exceed its 
powers, its so-called statutes are not laws at all, and 
cannot be enforced. 

In America the supreme law-making power resides 
in the people. Whatever they enact binds all courts 
whatsoever. All other law-making bodies are subordin- 
ate, and the enactments of such bodies must conform to 
the supreme law, else they wiU perish at its touch, as a 
fishing smack goes down before an ocean steamer. And 



CHAP. XXIII THE COURTS AND THE CONSTITUTION 335 

these subordinate enactments, if at variance with the 
supreme law, are invalid from the first, although their 
invalidity may remain for years unnoticed or un- 
proved. It can be proved only by the decision of a 
court in a case which raises the point for determina- 
tion. The phenomenon cannot arise in a country 
whose legislature is omnipotent, but naturally^ arises 
wherever we find a legislature limited by a superior 
authority, such as a constitution which the legislature 
cannot alter. 

In England the judges interpret Acts of Parliament 
exactly as American judges interpret statutes coming be- 
fore them. If they find an Act conflicting with a decided 
case, they prefer the Act to the case, as being of higher 
authority. As between two conflicting Acts, they prefer 
the later, because it is the last expression of the mind of 
Parliament. If they misinterpret the mind of Parlia- 
ment, i.e. if they construe an Act in a sense which Parlia- 
ment did not really intend, their decision is nevertheless 
valid, and will be followed by other courts ^ until Parlia- 
ment speaks its mind again by another Act. The only 
difference between their position and that of their 
American brethren is that they have never to dis- 
tinguish between the authority of one enactment and 
of another, otherwise than by looking to the date, and 
that they have therefore never to inquire whether an 
Act of Parliament was invalid when first passed. In- 

^ I do not say "necessarily," because there are countries on the 
European continent where, although there exists a constitution superior to 
the legislature, the courts are not allowed to hold a legislative act in- 
valid, because the legislature is deemed to have the right of taking its own 
view of the constitution. This seems to be the case both in France and 
in Switzerland. 

2 That is, by other courts of the same or a lower degree of authority. 
A court of the same authority will, however, sometimes differ from a 
decision it thinks erroneous, and a higher court will not hesitate to do so. 



336 THE NATIONAL GOVERNMENT parti 

valid it could not have been, because Parliament is 
omnipotent, and Parliament is omnipotent because 
Parliament is deemed to be the people. Parliament 
is not a body ydth delegated or limited authority. 
The whole fulness of popular power dwells in it. The 
whole nation is supposed to be present within its walls. ^ 
Its will is law ; or, as Dante says in a famous line, " its 
will is power." 

There is a story told of an intelligent Englishman 
who, having heard that the Supreme Federal Court was 
created to protect the Constitution, and had authority 
given it to annul bad laws, spent two days in hunting 
up and down the Federal Constitution for the provisions 
he had been told to admire. No wonder he did not 
find them, for there is not a word in the Constitution 
on the subject. The powers of the Federal courts are 
the same as those of all other courts in civilized 
countries, or rather they differ from those of other 
courts by defect and not by excess, being limited to 
certain classes of cases. The so-called *' power of 
annulling an unconstitutional statute " is a duty rather 
than a power, and a duty incumbent on the humblest 
State court when a case raising the point comes before 
it no less than on the Supreme Federal Court at 
Washington. When therefore people talk, as they 

1 The old writers say that the reason why an Act of Parliament 
requires no public notification in the country is because it is deemed to 
be made by the whole nation, so that every person is present at the 
making of it It is certainly tme that the orthodox legal view of Parlia- 
ment never regards it as exercising powers that can in any sense be caUe<l 
delegated. A remarkable example of the power which Parliament can exert 
as an ultimately and completely sovereign body is afforded by the Septen- 
nial Act (1 Qeo. I. St. 2, cap. 38). By this statute a Parliament in which 
the House of Commons had been elected for three years only, under the 
Triennial Act then in force, prolonged not only the possible duration of 
future Parliaments but its own term to seven years, taking to itself four 
years of power which the electors had not given it 



CHAP. XXIII THE COURTS AND THE CONSTITUTION 337 

sometimes do, even in the United States, of the 
Supreme court as " the guardian of the Constitution," 
they mean nothing more than that it is the final court 
of appeal, before which suits involving constitutional 
questions may be brought up by the parties for decision. 
In so far the phrase is legitimate. But the functions of 
the Supreme court are the same in kind as those of all 
other courts. State as well as Federal. Its duty and 
theirs is simply to declare and apply the law ; and 
where any court, be it a State court of first instance, 
or the Federal court of last instance, finds a law of 
lower authority clashing with a law of higher authority, 
it must reject the former, as being really no law, and 
enforce the latter. 

It is therefore no mere tecjinicality to point out 
that the American judges do not, as Europeans are apt 
to say, " control the legislature," but simply interpret 
the law. The word " control " is misleading, because it 
implies that the person or body of whom it is used 
possesses and exerts discretionary personal Will. Now 
the American judges have no will in the matter 
any more than has an English court when it inter- 
prets an Act of Parliament. The will that prevails 
is the will of the people, expressed in the Constitution 
which they have enacted. All that the judges have to 
do is to discover from the enactments before them what 
the will of the people is, and apply that will to the 
facts of a given case. The more general or ambiguous 
the language which the people have used, so much 
the more difficult is the task of interpretation, so much 
greater the need for ability and integrity in the judges. 
But the task is always the same in its nature. The 
judges have no concern with the motives or the results 
of an enactment, otherwise than as these may throw light 

VOL. I z 



338 THE NATIONAL GOVERNMENT parti 

on the sense in which the enacting authority intended 
it. It would be a breach of duty for them to express, 
I might almost say a breach of duty to entertain, an 
opinion on its policy except so far as its policy explains 
its meaning. They may think a statute excellent in 
purpose and working, but if they cannot find in the 
Constitution a power for Congress to pass it, they must 
brush it aside as invalid. They may deem another 
statute pernicious, but if it is within the powers of 
Congress, they must enforce it. To construe the 
law, that is, to elucidate the will of the people as 
supreme lawgiver, is the beginning and end of their 
duty.' 

To press this point is not to minimize the import- 
ance of the functions exercised by the judiciary of the 
United States, but to indicate their true nature. The 
importance pf those functions can hardly be exaggerated. 
It arises from two facts. One is that as the Constitution 
cannot easily be changed, a bad decision on its meaning, 
i.e. a decision which the general opinion of the profes- 
sion condemns, may go uncorrected. In England, if a 
court has construed a statute in a way unintended or 
unexpected. Parliament sets things right next session 
by amending the statute, and so prevents future 
decisions to the same eflfect. But American history shows 
only one instance in which an unwelcome decision on the 
meaning of the Constitution has been thus dealt with, 
viz. the decision, that a State could be sued by a private 

1 " Suppose, however," some one may say, " that the court should go 
beyond its duty and import its own views of what ought to be the law into 
its decision as to what is the law. This would be an exercise of judicial 
wilL" Doubtless it would, but it would be a breach of duty, would 
expose the court to the distrust of the people, and might, if repeated or 
persisted in in a serious matter, provoke resistance to the law as laid down 
by the court. See Chapter XXXIII. 'poii. 



CHAP. XXIII THE COURTS AND THE CONSTITUTION 339 

citizen/ which led to the eleventh amendment, whereby 
it was declared that the Constitution should not cover 
a case which the court had held it did cover. 

The other fact which makes the function of an 
American judge so momentous is the brevity, the laud- 
able brevity, of the Constitution. The words of that 
instrument are general, lajdng down a few large prin- 
ciples. The cases which will arise as to the construc- 
tion of these general words cannot be foreseen till they 
arise. When they do arise the generality of the words 
leaves open to the interpreting judges a far wider field 
than is aflforded by ordinary statutes which, since they 
treat of one particular subject, contain enactments com- 
paratively minute and precise. Hence, although the 
duty of a court is only to interpret, the considerations 
affecting interpretation are more numerous than in the 
case of ordinary statutes, more delicate, larger in their 
reach and scope. They sometimes need the exercise 
not merely of legal acumen and judicial fairness, but 
of a comprehension of the nature and methods of govern- 
ment which one does not demand from the European 
judge who walks in the narrow path traced for him by 
ordinary statutes. It is therefore hardly an exaggera- 
tion to say that the American Constitution as it now 
stands, with the mass of fringing decisions which explain 
it, is a far more complete and finished instrument than 
it was when it came fire-new from the hands of the Con* 
vention. It is not merely their work but the work of 
the judges, and most of all of one man, the great Chief- 
Justice Marshall. 

The march of democracy in England has disposed 

^ See above, p. 315. The doctrine of the Dred Scott case (of which 
more anon) was set aside by the fourteenth amendment, but that amend- 
ment was intended to effect much more than merely to correct the court. 



340 THE NATIONAL GOVERNMENT parti 

English writers and politicians of the very school which 
thirty or twenty years ago pointed to America as a 
terrible example, now to discover that her republic 
possesses elements of stability wanting in the monarchy 
of the mother country. They lament that England 
should have no supreme court. Some have even 
suggested that England should create one. They do 
not seem to perceive that the dangers they discern 
arise not from the want of a court but from the 
omnipotence of the British Parliament. They ask for 
a court to guard the British Constitution, forgetting 
that Britain has no constitution, in the American sense, 
and never had one, except for a short space under 
Oliver Cromwell. The strongest court that might 
be set up in England could eflfect nothing so long as 
Parliament retains its power to change every part of the 
law, including all the rules and doctrines that are called 
constitutional. If Parliament were to lose that power 
there would be no need to create a supreme court, be- 
cause the existing judges of the land would necessarily 
discharge the very functions which American judges 
now discharge. If Parliament were to be split up into 
four parliaments for England, Scotland, Ireland, and 
Wales, and a new Federal Assembly were to be estab- 
lished with limited legislative powers, powers defined 
by an instrument which neither the Federal Assembly 
nor any of the four parliaments could alter, questions 
would forthwith arise as to the compatibility both of acts 
passed by the Assembly with the provisions of the instru- 
ment, and of acts passed by any of the four parliaments 
with those passed by the Assembly. These questions 
would come before the courts and be determined by them 
like any other question of law. The same thing would 
happen if Britain were to enter into a federal pact with 






CHAP. XXIII THE COURTS AND THE CONSTITUTION 341 

her colonies, creating an imperial Council, and giving it 
powers which, though restricted by the pact to certain 
purposes, transcended those of the British Parliament. 
The interpretation of the pact would belong to the 
courts, and both Parliament and the supposed Council 
would be bound by that interpretation.^ If a new 
supreme court were created by Britain, it would be 
created not because there do not already exist courts 
capable of entertaining all the questions that could arise, 
but because the parties to the new constitution enacted 
for the United Kingdom, or the British Empire (as the 
case might be), might insist that a tribunal composed 
of persons chosen by some Federal authority would be 
more certainly impaxtial. The preliminaxy therefore to 
any such "judicial safeguard" as has been suggested is 
the extinction of the present British Parliament and the 
erection of a wholly different body or bodies in its room. 

These observations may sufl&ce to show that there is 
nothing strange or. mysterious about the relation of the 
Federal courts to the Constitution. The plan which the 
Convention of 1787 adopted is simple useful and con- 
formable to general legal principles. It is, in the original 
sense of the word, an elegant plan. But it is not novel. 
It was at work in the States before the Convention of 1 787 
met. It was at work in the thirteen colonies before they 
revolted from England. It is an application of old and 
familiar legal doctrines. Such novelty as there is be- 
longs to the scheme of a Supreme or Eigid constitution, 
reserving the ultimate power to the people, and limiting 
in the same measure the power of a legislature.^ 

It is nevertheless true that there is no part of the 

1 Assuming of course that the power of altering the pact was reserved 
to some authority superior to either the Council or Parliament. 

2 This was clearly stated by James Wilson of Pennsylvania, one 



342 THE NA TIONAL GO VERNMENT part i 

American system which reflects more credit on its authors 
or has worked better in practice. It has had the ad- 
vantage of relegating questions not only intricate and 
delicate, but peculiarly liable to excite political passions, 
to the cool, dry atmosphere of judicial determination. 
The relations of the central Federal power to the States, 
and the amount of authority which Congress and the 
President are respectively entitled to exercise, have been 
the most permanently grave questions in American 
history, with which nearly every other political problem 
has become entangled. If they had been left to be 
settled by Congress, itself an interested party, or by any 
dealings between Congress and the State legislatures, the 
dangers of a conflict would have been extreme, and in- 
stead of one civil war there might have been several. 
But the universal respect felt for the Constitution, a 
respect which grows the longer it stands, has disposed 
men to defer to any decision which seems honestly and 
logically to unfold the meaning of its terms. In obey- 
ing such a decision they are obeying, not the judges, but 
the people who enacted the Constitution. To have fore- 
seen that the power of interpreting the Federal Constitu- 
tion and statutes, and of determining whether or no State 
constitutions and statutes transgress Federal provisions, 

of the deepest thinkers and most exact reasoners among the members 
of the Convention of 1787. Speaking of the State constitutions, 
he remarked in the Pennsylvania Convention of 1788: "Perhaps 
some politician who has not considered with sufficient accuracy our 
political systems would observe that in our governments the supreme 
power was vested in the constitutions. This opinion approaches the 
truth, but does not reach it. The truth is that in our governments the 
supreme, absolute, and uncontrollable power remains in the people. As 
our constitutions are superior to our legislatures, so the people are superior 
to our constitutions." — EUiofs Debates, ii. 432. 

Mr. M*Kean, speaking in the same convention, quoted Locke's Civil 
Government (c. 2, § 140, and c. 13, § 152) as an authority for the proposi- 
tion that the powers of Congress could be no greater than the positive 
grant might convey. 



CHAP. XXIII THE COURTS AND THE CONSTITUTION 343 

would be suflficient to prevent struggles between the 
National government and the State governments, re- 
quired great insight and great faith in the soundness 
and power of a principle. While the Constitution was 
being framed the suggestion was made, and for a time 
seemed likely to be adopted, that a veto on the acts of 
State legislatures should be conferred upon the Federal 
Congress. Discussion revealed the objections to such a 
plan. Its introduction would have oflfended the senti- 
ment of the States, always jealous of their autonomy; 
its exercise would have provoked collisions with them. 
The disallowance of a State statute, even if it did really 
offend against the Federal Constitution, would have 
seemed a political move, to be resented by a political 
counter-move. And the veto would often have been 
pronounced before it could have been ascertained exactly 
how the State statute would work, sometimes, perhaps, 
pronounced in cases where the statute was neither per- 
nicious in itself nor opposed to the Federal Constitution. 
But by the action of the courts the self-love of the 
States is not wounded, and the decision annulling their 
laws is nothing but a tribute to the superior authority of 
that supreme enactment to which they were themselves 
parties, and which they may themselves desire to see 
enforced against another State on some not remote 
occasion. However, the idea of a veto by Congress was 
most eflfectively demolished in the Convention by Roger 
Sherman, who acutely remarked that a veto would seem 
to recognize as valid the State statute objected to, 
whereas if inconsistent with the Constitution it was 
really invalid already and needed no veto. 

By leaving constitutional questions to be settled by 
the courts of law another advantage was incidentally 
secured. The court does not go to meet the question ; it 



344 THE NA TIONAL GO VERNMENT part i 

waits for the question to come to it. When the court 
acts it acts at the instance of a party. Sometimes the 
plaintiff or the defendant may be the National govern- 
ment or a State government, but far more frequently 
both are private persons, seeking to enforce or defend 
their private rights. For instance, in the famous case ^ 
which established the doctrine that a statute passed by 
a State repealing a grant of land to an individual made 
on certain terms by a previous statute is a law " impair- 
ing the obligation of a contract," and therefore invalid, 
under Art. i. § 10 of the Federal Constitution; the 
question came before the court on an action by one 
Fletcher against one Peck on a covenant contained in a 
deed made by the latter ; and to do justice between 
plaintiff and defendant it was necessary to examine the 
validity of a statute passed by the legislature of Georgia. 
This method has the merit of not hurrying a question 
on, but leaving it to arise of itself. Full legal argument 
on both sides is secured by the private interests which 
the parties have in setting forth their contentions ; and 
the decision when pronounced, since it appears to be, as 
in fact it is, primarily a decision upon private rights, 
obtains that respect and moral support which a private 
plaintiff or defendant establishing his legal right is 
entitled to from law-abiding citizens. A State might be 
provoked to resistance if it saw, as soon as it had passed 
a statute, the Federal government inviting the Supreme 
court to declare that statute invalid. But when the 
Federal authority stands silent, and a year after in an 
ordinary action between Smith and Jones the court 
decides in favour of Jones, who argued that the statute 
on which the plaintiff relied was invalid because it 
transgressed some provision of the Constitution, every- 

^ Fletcher v. Peck, 6 Cranch, p. 87. 



CHAP. XXIII THE COURTS AND THE CONSTITUTION 345 

body feels that Jones was justified in so arguing, and 
that since judgment was given in his favour he must be 
allowed to retain the money which the court has found 
to be his, and the statute which violated his private 
right must fall to the ground. 

This feature has particularly excited the admiration 
of Continental critics. To an Englishman it seems 
perfectly natural, because it is exactly in this way that 
much of English constitutional law has been built up. 
The English courts had indeed no rigid documentary 
constitution by which to test the ordinances or the 
executive acts of the Crown, and their decisions on 
constitutional points have often been pronounced in 
proceedings to which the Crown or its ministers were 
parties. But they have repeatedly established principles 
of the greatest moment by judgments delivered in cases 
where a private interest was involved, grounding them- 
selves either on a statute which they interpreted or on 
some earlier decision.^ Lord Mansfield's famous declara- 
tion that slavery was legally impossible in England 
was pronounced in such a private case. Stockdale v. 
Hansard, in which the law regarding the publishing of 
debates in Parliament was settled, was an action by a 
private person against printers. The American method 
of settling constitutional questions, like all other legal 
questions, in actions between private parties, is there- 
fore no new device, but a part of that priceless heritage 
of the English Common Law which the colonists carried 
with them across the sea, and which they have preserved 
and developed in a manner worthy of its own free 
spirit and lofty traditions. 

Europeans commonly suppose that the functions 

1 The independence (since the Kevolution) of the English judges and of 
the American Federal judges has of course largely contributed to make 
them trusted, and to make them act worthily of the trust reposed in them. 



346 THE NATIONAL GOVERNMENT parti 

above described as pertaining to the American courts are 
peculiar to and essential to a Federal government. This 
is a mistake. They are not peculiar to a federation, be- 
cause the distinction of fundamental laws and inferior 
laws may exist equally well in a unified government, did 
exist in each of the thirteen colonies up till 1776, did 
exist in each of the thirteen States from 1776 till 1789, 
does exist in every one of the thirty-eight States now. 
Nor are they essential, because a federation may be 
imagined in which the central or national legislature 
should be theoretically sovereign in the same sense and 
to the same full extent as is the British Parliament.^ 
The component parts of any confederacy will no doubt 
be generally disposed to place their respective State 
rights under the protection of a compact unchangeable 
by the national legislature. But they need not do so, 
for they may rely on the command which as electors 
they have over that legislature, and may prefer the 
greater energy which a sovereign legislature promises to 
the greater security for State rights which a limited 
legislature implies. In the particular case of America 
it is abundantly clear that if there had been in 1787 no 
States jealous of their powers, but an united nation 
creating for itself an improved frame of government, the 
organs of that government would have been limited by 
a fundamental law just as they are now, because the 
nation, fearing and distrusting the agents it was creating, 
was resolved to fetter them by reserving to itself the 
ultimate and over-riding sovereignty. 

^ It would appear that in the Achaean League the Assembly (which 
voted by cities) was sovereign, and could by its vote vary the terms of the 
federal arrangements between the cities fonning the federation ; although 
the scantiness of our data and what may be called the want of legal- 
mindedness among the Greeks make this and similar questions not easy 
of determination. 



CHAP. XXIII THE COURTS AND THE CONSTITUTION 347 

The case of Switzerland shows that the American 
plan is not the only one possible to a federation. The 
Swiss Federal Court, while instituted in imitation of the 
American, is not the only authority competent to deter- 
mine whether a Cantonal law is void because inconsistent 
with the Federal Constitution, for in some cases re- 
course must be had not to the Court but to the Federal 
Council, which is a sort of executive cabinet of the Con- 
federation. And the Federal Court is bound to enforce 
every law passed by the Federal legislature, even if it 
violate the Constitution. In other words, the Swiss Con- 
stitution has reserved some points of Cantonal law for 
an authority not judicial but political, and has made 
the Federal legislature the sole judge of its own powers, 
the authorized interpreter of the Constitution, and an 
interpreter not likely to proceed on purely legal grounds.^ 
To an English or American lawyer the Swiss copy seems 
neither so consistent with sound theory nor so safe in 
practice as the American original. But the statesmen 
of Switzerland felt that a method fit for America might 
be ill-fitted for their own country, where the latitude 
given to the executive is greater ; and the Swiss habit of 
constantly recurring to popular vote makes it less neces- 
sary to restrain the legislature by a permanently enacted 
instrument. The political traditions of the European 
continent differ widely from those of England and 
America; and the Federal Judicature is not the only 
Anglo-American institution which might fail to thrive 
anywhere but in its native soil. 

^ See upon this fascinating subject, the provisions of the Swiss 
Federal Constitution of 1874, arts. 102, 110, and 114 ; also Dubs, 
Das oeffentliche Recht der Schweizerischen Eidgenossenschaft, and a valuable 
pamphlet by M. Ch. Soldan, entitled Du recours de Droit Public au 
Tribunal F^d^ral; Bile, 1886. Dr. Dubs was himself the author of the 
plan whereby the Federal legislature is made the arbiter of its own con- 
stitutional powers. 



CHAPTER XXIV 

THE WORKING OF THE COURTS 

Those readers who have followed thus far the account 
given of the Federal courts have probably asked them- 
selves how judicial authorities can sustain the functions 
which America requires them to discharge. It is plain 
that judges, when sucked into the vortex of politics, 
must lose dignity, impartiality, and influence. But 
how can judges keep out of politics, when political 
issues raising party passions come before them ? Must 
not constitutional questions, questions as to the rights 
under the Constitution of the Federal government 
against the States, and of the branches of the Federal 
government against one another, frequently involve 
momentous political issues ? In the troublous times 
during which the outlines of the English Constitution 
were settled, controversy often raged round the 
courts, because the decision of contested points lay in 
their hands. When Charles I. could not induce Par- 
liament to admit the right of levying contributions 
which he claimed, and Parliament relied on the power 
of the purse as its defence against Charles L, the 
question whether ship-money could lawfully be levied 
was vital to both parties, and the judges held the 
balance of power in their hands. At that moment 



CHAP. XXIV THE WORKING OF THE COURTS 349 

the law could not be changed, because the Houses 
and the king stood opposed: hence everything turned 
on the interpretation of the existing law. In America 
the Constitution is at all times very hard to change : 
much more then must political issues turn on its 
interpretation. And if this be so, must not the inter- 
preting court be led to assume a control over the 
executive and legislative branches of the government, 
since it has the power of declaring their acts illegal ? 

There is ground for these criticisms. The evU they 
point to has occurred and may recur. But it occurs 
very rarely, and may be averted by the same prudence 
which the courts have hitherto generally shown. The 
causes which have enabled the Federal courts to avoid 
it, and to maintain their dignity and influence almost 
unshaken, are the following : — 

The Supreme court — I speak of the Supreme court 
because its conduct has governed that of inferior Federal 
courts — has steadily refused to interfere in purely politi- 
cal questions. Whenever it finds any discretion given 
to the President, any executive duty imposed on him, it 
considers the manner in which he exercises his discre- 
tion and discharges the duty to be beyond its province. 
Whenever the Constitution has conferred a power of 
legislating upon Congress, the court declines to inquire 
whether the use of the power was in the case of a par- 
ticular statute passed by Congress either necessary or 
desirable, or whether it was exerted in a prudent 
manner, for it holds all such matters to be within the 
exclusive province of Congress. 

" In measures exclusively of a political, legislative, or executive 
character, it is plain that as the supreme authority as to these ques- 
tions belongs to the legislative and executive departments, they 
cannot be re-examined elsewhere. Thus Congress, having the 



350 THE NATIONAL GOVERNMENT parti 

power to declare war, to levy taxes, to appropriate money, to regu- 
late intercourse and commerce with foreign nations, their mode of 
executing these powers can never become the subject of re-examina- 
tion in any other tribunal. So the power to make treaties being 
confided to the President and Senate, when a treaty is properly 
ratified, it becomes the law of the land, and no other tribunal can 
gainsay its stipulations. Yet cases may readily be imagined in 
which a tax may be laid, or a treaty made upon motives and 
grounds wholly beside the intention of the Constitution. The 
remedy, however, in such cases is solely by an appeal to the people 
at the elections, or by the salutary power of amendment provided 
by the Constitution itself." ^ 

This may seem a vague statement of the principle 
which the court has followed, but it could be rendered 
more precise only by setting forth the instances in which 
it has been applied. It has enabled the court to avoid 
an immixture in political strife which must have de- 
stroyed its credit, has deterred it from entering the 
political arena, where it would have been weak, and 
enabled it to act without fear in the sphere of pure law, 
where it is strong. Occasionally, however, as I shall 
explain presently, the court has come into collision with 
the executive. Occasionally it has been required to 
give decisions which have worked with tremendous force 
on politics. The most famous of these was the Dred 
Scott case,^ in which the Supreme court, on an action by 
a negro for assault and battery against the person claim- 
ing to be his master, declared that a slave taken tem- 
porarily to a free State and to a Territory in which 
Congress had forbidden slavery, and afterwards return- 
ing into a slave State and resuming residence there, was 

^ Stx)ry, Commentaries on the Constitution, § 374. 

2 Scott v. Sandfordj 19 How. 393. There is an immense literature 
about this case, the legal points involved in which are too numerous and 
technical to be here stated. It is noticeable that the sting of the decision 
lay rather in the obiter dicta than in the determination of the main ques- 
tion involved. 



CHAP. XXIV THE WORKING OF THE COURTS 351 

not a citizen capable of suing in the Federal courts if by 
the law of the slave State he was still a slave. This 
was the point which actually called for decision; but 
the majority of the court, for there was a dissentient 
minority, went further, and delivered a variety of dicta 
on various other points touching the legal status of 
negroes and the constitutional view of slavery. This 
judgment, since the language used in it seemed to cut 
off the hope of a settlement by the authority of Con- 
gress of the then (1857) pending disputes over slavery 
and its extension, did much to precipitate the Civil War. 

Some questions, and among them many which in- 
volve political issues, can never come before the Federal 
courts, because they are not such as are raisable in an 
action between parties. Of those which might be raised, 
some never happen to arise, while others do not present 
themselves in an action till some time after the statute 
has been passed or act done on which the court is called 
to pronounce. By that time it may happen that the 
warmth of feeling which expressed itself during debate 
in Congress or in the country has passed away, while the 
judgment of the nation at large has been practically 
pronounced upon the issue. 

Looking upon itself as a pure organ of the law, com- 
missioned to do justice between man and man, but to do 
nothing more, the Supreme court has steadily refused to 
decide abstract questions, or to give opinions in advance 
by way of advice to the executive. When, in 1793, 
President Washington requested its opinion on the con- 
struction of the treaty of 1778 with France, the judges 
declined to comply.^ 

This restriction of the court's duty to the determina- 

^ Story, CoTwmenturies, § 1571 ; c£ Marshall's Life of Washingtonj 
voL V. chap, vi 



352 THE NATIONAL GOVERNMENT parti 

tion of concrete cases arising in suits has excited so 
much admiration from De Tocqueville and other writers, 
that the corresponding disadvantages must be stated. 
They are these : — 

To settle at once and for ever a disputed point of 
constitutional law would often be a gain both to private 
citizens and to the organs of the government. Under 
the present system there is no certainty when, if ever, 
such a point will be settled. Nobody may care to incur 
the trouble and expense of taking it before the court. 
A suit which raises it may be compromised or dropped. 

When such a question, after perhaps the lapse of 
years, comes before the Supreme court and is determined, 
the determination may be different from what the legal 
profession has expected, may alter that which has been 
believed to be the law, may shake or overthrow private 
interests based upon views now declared to be erron- 
eous.^ These are, no doubt, drawbacks incident to 
every system in which the decisions of courts play a 
great part. There are many points in the law of Eng- 
land which are uncertain even now, because they have 
never come before a court of high authority, or, having 
been decided in different ways by co-ordinate courts, 
have not been carried to the final court of appeal.^ But 
in England, if the inconvenience is great, it can be re- 
moved by an Act of Parliament, and it can hardly be 
so great as it may be in America, where, since the doubt- 
ful point may be the true construction of the funda- 

^ The Dred Scott decision in 1857 declared the Missouri compromise, 
carried out by Act of Congress in 1820, to have been beyond the powers 
of Congress, which, to be sure, had virtually repealed it a year or two before 
by the Kansas-Nebraska legislation. Decisions have been given on the 
fourteenth and fifteenth amendments upsetting or qualifying congressional 
legislation passed years before. 

^ The point at last settled in Martin v. Holgate by the House of 
Lords will occur to English lawyers as a remarkable instance. 



CHAP. XXIV THE WORKING OF THE COURTS 353 

mental law of the Union, the President and Congress may 
be left in uncertainty as to how they shall shape their 
course. With the best wish in the world to act con- 
formably to the Constitution, these authorities have no 
means of ascertaining before they act what, in the view 
of its authorized interpreters, the true meaning of the 
Constitution is. Moved by this consideration, five States 
of the Union have by their constitutions empowered 
the governor or legislature to require the written 
opinions of the judges of the highest State court on 
points submitted to them.^ But the President of the 
United States can only consult his attorney-general,* 
and the Houses of Congress have no legal adviser, 
though to be sure they are apt to receive a profusion of 
advice from their own legal members. 

I return to notice other causes which have sus- 
tained the authority of the court by saving it from 
immersion in the turbid pool of politics. These are 
the strength of professional feeling among American 
lawyers, the relation of the bench to the bar, the 
power of the legal profession in the country. Pro- 
posing to describe both bar and bench in subsequent 
chapters, I will only now remark that the keen interest 
which the profession takes in the law secures an unusually 
large number of acute and competent critics of the inter- 
pretation put upon the law by the judges. Such men 

1 See Chapter XXXVII. in VoL II. There exists a similar provision 
in the statutes creating some of the British colonial governments, and the 
Government of Ireland Bill, introduced into the House of Commons in 
1886 but defeated there, contained (§ 26) a proviso enabling the Lord- 
Lieutenant of Ireland or a Secretary of State to refer a question for 
opinion to the judicial committee of the Privy Council. 

2 The President sometimes, for the benefit of the public, publishes the 
written opinion of the attorney-general on an important and doubtful 
point ; but such an opinion has no more authority than what it may 
derive from the professional eminence of the person who gives it. 

VOL. I 2 A 



354 THE NATIONAL GOVERNMENT parti 

form a tribunal to whose opinion the judges are sensi- 
tive, and all the more sensitive because the judges, 
like those of England, but unlike those of continental 
Europe, have been themselves practising counsel. The 
better lawyers of the United States do not sink their 
professional sentiment and opinion in their party sym- 
pathies. They know good law even when it goes 
against themselves, and privately condemn as bad law a 
decision none the less because it benefits their party or 
their client. The Federal judge who has recently quitted 
the ranks of the bar remains in sympathy with it, 
respects its views, desires its approbation. Both his 
inbred professional habits, and his respect for those tradi- 
tions which the bar prizes, restrain him from prostituting 
his office to party objects. Though he has usually 
been a politician, and owes his promotion to his party, 
his political trappings drop oflF him when he mounts 
the Supreme bencL He has now nothing to fear from 
party displeasure, because he is irremovable (except by 
impeachment), nothing to hope from party favour, 
because he is at the top of the tree and can climb no 
higher. Virtue has all the external conditions in her 
favour. It is true that virtue is compatible with the 
desire to extend the power and jurisdiction of the court. 
But even allowing that this motive may occasionally 
sway the judicial mind, the circumstances which sur- 
round the action of a tribunal debarred from initiative, 
capable of dealing only with concrete cases that come 
before it at irregular intervals, unable to appropriate any 
of the sweets of power other than power itself, make a 
course of systematic usurpation more difficidt and less 
seductive than it would be to a legislative assembly or 
an executive council. As the respect of the bench for 
the bar tends to keep the judges in the straight path, so 



CHAP. XXIV THE WORKING OF THE COURTS 355 

the respect and regard of the bar for the bench, a regard 
grounded on the sense of professional brotherhood, 
ensure the moral influence of the court in the country. 
The bar has usually been very powerful in America, 
not only as being the only class of educated men 
who are at once men of aff'airs and skilled speakers, 
but also because there has been no nobility or terri- 
torial aristocracy to overshadow it.^ Politics have been 
largely in ite hands, and must remain so a^ long as 
political questions continue to be involved with the in- 
terpretation of constitutions. For the first sixty or 
seventy years of the Kepublic the leading statesmen 
were lawyers, and the lawyers as a whole moulded and 
led the public opinion of the country. Now to the better 
class of American lawyers law was a sacred science, and 
the highest court which dispensed it a sort of Mecca, 
towards which the faces of the faithful turned. Hence 
every constitutional case before the Supreme court was 
closely watched, the reasonings of the court studied, 
and its decisions appreciated as law apart from their 
bearing on political doctrines. I have heard elderly 
men describe the interest with which, in their youth, 
a famous advocate who had goq^ to Washington to 
argue a case before the Suprem^ court was welcomed 
by the bar of his own city on hia'return, how the rising 
men crowded round him to hear what he had to tell of 
the combat in that arena where the best intellects of the 
nation strove, how the respect which he never failed to 
express for the ability and impartiality of the court com- 
municated itself to them, how admiration bred acquies- 

1 This professional interest in law seems to have been stronger in the 
last generation than it is now ; it is even now stronger in America than 
in England. Of course I do not speak of those sharpshooters who, while 
calling themselves lawyers, are reaUy politicians or lobbyists, but of the 
regular army of practitioners. 



356 THE NATIONAL GOVERNMENT parti 

cence, and the whole profession accepted expositions of 
the law unexpected by many, perhaps unwelcome to 
most. When it was felt that the judges had honestly 
sought to expound the Constitution, and when the cogency 
of their reasonings was admitted, resentment, if any there 
had been, passed away, and the support which the bar 
gave to the court ensured the obedience of the people. 

That this factor in the maintenance of judicial 
influence proved so potent was largely due to the per- 
sonal eminence of the judges. One must not call that a 
result of fortune which was the result of the wisdom of 
successive Presidents in choosing capable men to sit on 
the supreme Federal bench. Yet one man was so 
singcdarly fitted for the office of chief justice, and 
rendered such incomparable services in it, that the 
Americans have been wont to regard him as a special 
gift of favouring Providence. This was John Marshall, 
who presided over the Supreme court from 1801 till his 
death in 1835 at the age of seventy-seven, and whose 
fame overtops that of all other American judges more 
than Papinian overtops the jurists of Rome or Lord 
Mansfield the jurists of England, No other man did 
half so much either to develop the Constitution by 
expounding it, or to secure for the judiciary its rightful 
place in the government as the living voice of the Con- 
stitution. No one vindicated more strenuously the duty 
of the court to establish the authority of the fundamental 
law of the land, no one abstained more scrupulously 
from trespassing on the field of executive administration 
or political controversy. The admiration and respect 
which he and his colleagues won for the court remain its 
bulwark : the traditions which were formed under him 
and them have continued in general to guide the action 
and elevate the sentiments of their successors. 



CHAP. XXIV THE WORKING OF THE COURTS 357 

Nevertheless, the court has not always had smooth 
seas to navigate. It has more than once been shaken by 
blasts of unpopularity. It has not infrequently found 
itself in conflict with other authorities. 

The first attacks arose out of its decision that it had 
jurisdiction to entertain suits by private persons against 
a State.^ This point was set at rest by the eleventh 
amendment; but the States then first learnt to fear 
the Supreme court as an antagonist. In 1801, in an 
application requiring the secretary of state to deliver 
a commission, it declared itself to have the power to 
compel an executive oflficer to fulfil a ministerial duty 
affecting the rights of individuals.^ President Jefferson 
protested angrily against this claim, but it has been 
repeatedly re-asserted, and is now undoubted law. It 
was in this same case that the court first explicitly 
asserted its duty to treat as invalid an Act of Congress 
inconsistent with the Constitution.^ In 1806 it for the 
first time pronounced a State statute void ; in 1816 and 
1821 it rendered decisions establishing its authority as a 
supreme court of appeal from State courts on " federal 
questions," and unfolding the full meaning of the 
doctrine that the Constitution and Acts of Congress duly 
made in pursuance of the Constitution are the funda- 
mental and supreme law of the land. This was a doc- 
trine which had not been adequately apprehended even 
by lawyers, and its development, legitimate as we now 

^ Chisholm v. Georgia^ see above, p. 316. 

2 Marbury v. Madison^ 1 Cranch, 137. In this case the court re- 
fused to issue the mandamus asked for, but upon the ground that the 
statute of Congress giving to the Supreme court original jurisdiction 
to issue a mandamus was inconsistent with the Constitution. See also 
Kendal v. United States, 12 Peters, 616 ; United States v. Schurz, 102 
U.S. 378. 

3 This however is a power which it has rarely been found necessary 
to exert. See Dr. Andrews' Manual of the ConstituUion, p. 196. 



358 THE NATIONAL GOVERNMENT parti 

deem it, roused opposition. The Democratic party which 
came into power under President Jackson in 1829, was 
specially hostile to a construction of the Constitution 
which seemed to trench upon State rights,^ and when in 
1832 the Supreme court ordered the State of Georgia to 
release persons imprisoned under a Georgian statute 
which the court declared to be invalid,^ Jackson, whose 
duty it was to enforce the decision by the executive 
arm, remarked, "John Marshall has pronounced his 
judgment : let him enforce it if he can." The successful 
resistance of Georgia in the Cherokee dispute^ gave 
a blow to the authority of the court, and marked the 
beginning of a new period in its history, during which, 
in the hands of judges mostly appointed by the Demo- 
cratic party, it made no further advance in power. 

In 1857 the Dred Scott judgment, pronounced by a 
majority of the judges, excited the strongest outbreak 
of displeasure yet witnessed. The Kepublican party, 
then rising into strength, denounced this decision in the 
resolutions of the convention which nominated Abraham 
Lincoln in 1860, and its doctrine as to citizenship was 
expressly negatived in the fourteenth constitutional 
amendment adopted after the War of Secession. 

It was feared that the political leanings of the judges 

^ Martin van Boren (President 1837-41) expressed the feelings of the 
bulk of his party when he complained bitterly of the encroachments of 
the Supreme court, and declared that it would never have been created 
had the people foreseen the powers it would acquire. 

2 This was only one act in the long struggle of the Cherokee Indiana 
against the oppressive conduct of Greorgia, conduct which the court 
emphaticaUy condemned, though it proved powerless to help the unhappy 
Cherokees. 

2 The matter did not come to an absolute conflict, because before the 
time arrived for the court to direct the United States marshal of the dis- 
trict of Georgia to summon the 'po9»e comitatus and the President to render 
assistance in liberating the prisoners, the prisoners submitted to the State 
authorities, and were thereupon released. They probably believed that 
the imperious Jackson would persist in his hostility to the Supreme court. 



•CHAP. XXIV THE WORKING OF^ THE COURTS 359 

who formed the court at the outbreak of the war would 
induce them to throw legal difl&culties in the prosecution 
of the measures needed for re-establishing the authority 
of the Union. These fears proved ungrounded, although 
some contests arose as to the right of oflficers in the 
Federal army to disregard writs of habeas corpus issued 
by the court.^ In 1868, having then become Kepublican 
in its sympathies by the appointment of new members 
as the older judges disappeared, it sustained the congres- 
sional plan of reconstruction which President Johnson 
was endeavouring to defeat, and in subsequent cases it 
has given effect to most, though not to all, of the 
statutes passed by Congress under the three amend- 
ments which abolished slavery and secured the rights 
of the negroes. In 1876 it refused to entertain pro- 
ceedings instituted for the purpose of forbidding the 
President to execute the Reconstruction Acts. 

Two of its later acts are thought by some to 
have affected public confidence. One of these was 
the reversal, first in 1871, and again, upon broader 
but not inconsistent grounds, in 1884, of the decision, 
given in 1869, which declared invalid the Act of 
Congress making government paper a legal tender for 
debts. The original decision of 1869 was rendered by 
a majority of five to three. The court was afterwards 
changed by the creation of an additional judgeship, and 
by the appointment of a new member to fill a vacancy 
which occurred after the settlement, though before the 
delivery, of the first decision. Then the question was 
brought up again in a new case between different parties, 
and decided in the opposite sense {i.e. in favour of the 

1 See as to these tlie article " Habeas Corpus " by Mr. Alex. Johnston 
in the ArMrican Cyclopcedia of Political Science. And consider the very 
important decision ia Ex parte MiUigany 4 Wall. 129. 



36o THE NATIONAL GOVERNMENT parti 

power of Congress to pass legal tender acts) by a majority 
of five to four. Finally, in 1884, another suit having 
brought up a point practically the same though under a 
later statute passed by Congress, the court determined 
with only one dissentient voice that the power existed.^ 
This last decision excited some criticism, especially 
among the more conservative lawyers, because it seemed 
to remove restrictions hitherto supposed to exist on the 
authority of Congress, recognizing the right to establish 
a forced paper currency as an attribute of the sovereignty 
of the national government. But be the decision right 
or wrong, a point on which high authorities are still 
divided,^ the reversal by the highest court in the land 
of its own previous decision may have tended to unsettle 
men's reliance on the stability of the law, while the 
manner of the earlier reversal, following as it did on the 
creation of a new judgeship and the appointment of two 
justices, both known to be in favour of the view which 
the majority of the court had just disapproved, disclosed 
a weak point in the constitution of the tribunal which 
may some day prove fatal to its usefulness. 

The other misfortune was the interposition of the 
court in the presidential electoral count dispute of 1877.' 
Most people now admit that Mr. Tilden and not Mr. 
Hayes ought to have been declared elected in that year. 
But the five justices of the Supreme court who were 
included in the electoral commission then appointed 

^ The earlier decision in favour of tlie power deduced it from war 
powers, the later from the general sovereignty of the national government. 
See Hepburn v. Griswold, 8 WalL 603 ; Legal Tender Cases, 12 WalL 457 ; 
Juilliard v. Greenman, 110 U.S. 421. 

2 See the pamphlets of Mr. (Jeorge Bancroft and Mr. R C. MacMurtrie, 
an article in the Amer, Law Review, iv. 768, by Mr. (Justice) 0. W. Holmes, 
and an article in the Harvard Law Review for May 1887, by Mr. James 
B. Thayer, of the Harvard Law School. 

^ See above, p. 60. 



CHAP. XXIV THE WORKING OF THE COURTS 361 

voted on paxty lines no less steadily than did the senators 
and representatives who sat on it. A function scarcely 
judicial, and certainly not contemplated by the Constitu- 
tion, was then for the first time thrown upon the judi- 
ciary, and in discharging it the judiciary acted exactly 
like non-judicial persons. 

Notwithstanding this occurrence, which after all was 
quite exceptional, the credit and dignity of the Supreme 
court stand very high. No one of its members has 
ever been suspected of corruption, and comparatively 
few have allowed their political sympathies to dis- 
turb their official judgment. Though for many years 
back every President has appointed only men of 
his own party, and frequently leading politicians of his 
own party, ^ the new-made judge has left partisanship 
behind him, while no doubt usually retaining that 
bias or tendency of his mind which party training pro- 
duces. At present all the judges but three belong to 
the Republican party, but although the Democrats regret 
this, and when they came into power welcomed the 
prospect of putting in their own men as vacancies occur, 
the circumstance does not affect their respect for the 
court and their faith in its uprightness. The desire 
for an equal representation of both parties is based, not 
on any fear that suitors will suffer from the influence 
of party spirit, but on the feeling that when any new 
constitutional question arises it is right that the ten- 
dencies which have characterized the Democratic view 

^ I have heard American lawyers express surprise as well as admir- 
ation at the occasional departures in England (as notably in the recent 
case of Lord Justice Holker, who, having been Attorney-General of one 
party, was, in respect of his eminent merits, appointed Lord Justice of 
Appeal by the other) from the practice of political appointments to 
judicial office. Such non-political appointments are however occasionally 
made in the several States by the governors, or even (as in the case of 
Chief-Justice Redfield of Vermont) by the legislature. 



362 THE NATIONAL GOVERNMENT parti 

of the Constitution should be duly represented over 
against those supposed to influence the Eepublicans. 

Apart from these constitutional questions, the value 
of the Federal courts to the country at large has been 
inestimable. They have done much to meet the evils 
which an elective and ill-paid State judiciary inflicts 
on some of the newer and a few even of the older 
States. The Federal Circuit and District judges, small 
as are their salaries, are in most States individually 
superior men to the State judges, because the greater 
security of tenure induces abler men to accept the 
post. Being irremovable, they feel themselves inde- 
pendent of parties and politicians, whom the elected 
State judge, holding for a limited term, may be tempted 
to conciliate with a view to re-election. Plaintiff's there- 
fore, when they have a choice of suing in a State 
court or a Federal court, frequently prefer the latter ; 
and the litigant who belongs to a foreign country, or 
to a different State from that in which his opponent 
resides, may think his prospects of an unbiassed decision 
better before it than before a State tribunal. 

Federal judgeships of the second and third rank 
(Circuit and District) are invariably given to the members 
of the President's party, and by an equally well-estab- 
lished usage, to persons resident in the State or States 
where the circuit or district court is held. But cases 
of corruption, or even of pronounced partisanship, are 
practically unknown. The chief present defect is the in- 
adequacy of the salaries of the District judges, and the 
insufficiency of the staff in the more populous Eastern 
States to grapple with the vast and increasing business 
which flows in upon them. So too, in the Supreme court, 
arrears have so accumulated that it is now more than 
three years from the time when a cause is entered before 



CHAP. XXIV THE WORKING OF THE COURTS z(iZ 

it can come on for heaxing. Some have proposed to 
meet this evil by limiting the right of appeal to cases 
involving a considerable sum of money ; but a better 
remedy would be to divide the Supreme court into 
two divisional courts for the hearing of ordinary suits, 
reserving for the full court points affecting the con- 
struction of the Constitution. 

One question remains to be put and answered. 

The Supreme court is the living voice of the Constitu- 
tion/ that is, of the will of the people expressed in the 
fundamental law they have enacted. It is, therefore, as 
some one has said, the conscience of the people, who 
have resolved to restrain themselves from hasty or un- 
just action by placing their representatives under the 
restriction of a permanent law. It is the guarantee of 
the minority, who, when threatened by the impatient 
vehemence of a majority, can appeal to this permanent 
law, finding the interpreter and enforcer thereof in a 
court set high above the assaults of faction. 

To discharge these momentous functions, the court 
must be stable even as the Constitution is stable. Its spirit 
and tone must be that of the people at their best moments. 
It must' resist transitory impulses, and resist them the 
more firmly the more vehement they are. Entrenched 
behind impregnable ramparts, it must be able to defy at 
once the open attacks of the other departments of the 
government, and the more dangerous, because impalp- 
able, seductions of popular sentiment. 

Does it possess, has it displayed, this strength and 
stability ? 

^ The Romans called their chief judicial officer " the living voice of 
the civil law " ; but as this " civil law " consisted largely of custom, he 
naturally enjoyed a wider discretion in moulding and expanding as well as 
in expounding the law than do the American judges, who have a formally 
enacted constitution to guide and restrain them. 



364 THE NATIONAL GOVERNMENT parti 

It has not always Mowed its own former decisions. 
This is natural in a court whose errors cannot be 
cured by the intervention of the legislature. The 
English final Court of Appeal always follows its pre- 
vious decisions, though high authorities have declared 
that cases may be imagined in which it would refuse 
to do so. And that court (the House of Lords) can 
afibrd so to adhere, because, when an old decision 
begins to be condemned, Parliament can forthwith 
alter the law. But as nothing less than a constitu- 
tional amendment can alter the law contained in the 
Federal Constitution, the Supreme court must choose 
between the evil of unsettling the law by reversing, and 
the evil of perpetuating bad law by following, a former 
decision. It may reasonably, in extreme cases, deem 
the latter evil the greater. 

The Supreme court feels the touch of public opinion. 
Opinion is stronger in America than anywhere else in 
the world, and judges are only men. To yield a little 
may be prudent, for the tree that cannot bend to the 
blast may be broken. There is, moreover, this ground 
at least for presuming public opinion to be right, 
that through it the progressive judgment of the world 
is expressed. Of course, whenever the law is clear, 
because the words of the Constitution are plain or the 
cases interpreting them decisive on the point raised, 
the court must look solely to those words and cases, 
and cannot permit any other consideration to affect its 
mind. But when the terms of the Constitution admit 
of more than one construction, and when previous de- 
cisions have left the true construction so far open that 
the point in question may be deemed new, is a court 
to be blamed if it prefers the construction which the 
bulk of the people deem suited to the needs of the 



CHAP. XXIV THE WORKING OF THE COURTS 365 

time? A court is sometimes so swayed consciously, 
more often unconsciously, because the pervasive sym- 
pathy of numbers is irresistible even by elderly 
lawyers. A remarkable example is furnished by the 
decisions (in 1876) of the Supreme court in the 
so-called Granger cases, suits involving the power of a 
State to subject railways and other corporations or 
persons exercising what are called "public trades" to 
restrictive legislation without making pecuniary com- 
pensation.^ I do not presume to doubt the correctness 
of these decisions ; but they evidently represent a 
diflferent view of the sacredness of private rights and 
of the powers of a legislature from that entertained by 
Chief-Justice Marshall and his contemporaries. They 
reveal that current of opinion which now runs strongly 
in America against what are called monopolies and the 
powers of incorporated companies. 

The Supreme court has changed its colour, i.e. its 
temper and tendencies, from time to time, according to 
the political proclivities of the men who composed it. 
It changes very slowly, because the vacancies in a small 
body happen rarely, and its composition therefore often 
represents the predominance of a past and not of the 
presently ruling party. From 1789 down till the 
death of Chief- Justice Marshall in 1835 its tendency 
was to the extension of the powers of the Federal govern- 
ment and therewith of its own jurisdiction, because 
the ruling spirits in it were men who belonged to the 
old Federalist party, though that party fell in 1800, 

1 Seeilfunn v. Illinois, and the foUowing cases in 94 U.S. Rep. 193. 
This was one of those cases in which the court felt bound to regard not 
only the view which it took itself of the meaning of the Constitution 
but that which a legislature might reasonably take. — See Chapter XXXIV. 
post. As to the non-liability to make compensation where licences for 
the sale of intoxicants are forbidden, see Mugler v. KansaSy decided in 
the Supreme court of tiie United States, 6th December 1887. 



366 THE NATIONAL GOVERNMENT parti 

and disappeaxed in 1814. From 1835 till the War of 
Secession its sympathies were with the doctrines of the 
Democratic party. Without actually abandoning the posi- 
tions of the previous period, the court, during these years 
when Chief- Justice Taney presided over it, leant against 
any further extension of Federal power or of its own juris- 
diction. During and after the war, when the ascendency 
of the Kepublican party had begun to change the composi- 
tion of the court, a third period opened. Centralizing ideas 
were again powerful : the vaat war powers asserted by 
Congress were in most instances supported by judicial 
decision, the rights of States while maintained (as in 
the Granger cases) as against private persons or bodies, 
were for a time regarded with less favour whenever they 
seemed to conflict with those of the Federal government. 
In none of these three periods can the judges be charged 
with any prostitution of their functions to party purposes. 
Their action flowed naturally from the habits of thought 
they had formed before their accession to the bench, and 
from the sympathy they could not but feel with the 
doctrines on whose behalf they had contended. Even 
on the proverbiaUy upright and impartial bench of 
England the same tendencies may be discerned. There 
are constitutional questions, and questions touching what 
may be called the policy of the law, which would be 
decided differently by one English judge or by another, 
not from any conscious wish to favour a party or a class, 
but because the views which a man holds as a citizen 
cannot fail to colour his judgment even on legal points. 

The Fathers of the Constitution studied nothing 
more than to secure the complete independence of the 
judiciary. The President was not permitted to remove 
the judges, nor Congress to diminish their salaries. One 
thing only was either forgotten or deemed undesirable. 



CHAP. XXIV THE WORKING OF THE COURTS 367 

because highly inconvenient, to determine, — the number 
of judges in the Supreme court Here was a weak point, 
a joint in the court's armour through which a weapon 
might some day penetrate. Congress having in 1801, 
pursuant to a power contained in the Constitution, 
established sixteen Circuit courts, President Adams, 
immediately before he quitted office, appointed members 
of his own party to the justiceships thus created. 
When President JeflFerson came in, he refused to 
admit the validity of the appointments; and the 
newly elected Congress, which was in sympathy with 
him, abolished the Circuit courts themselves, since it 
could find no other means of ousting the new justices. 
This method of attack, whose constitutionality has been 
much doubted, cannot be used against the Supreme 
court, because that tribunal is directly created by the 
Constitution. But as the Constitution does not pre- 
scribe the number of justices, a statute may increase 
or diminish the number as Congress thinks fit. In 
1866, when Congress was in fierce antagonism to 
President Johnson, and desired to prevent him from 
appointing any judges, it reduced the number, which 
was then ten, by a statute providing that no vacancy 
should be filled up till the number was reduced to 
seven. In 1869, when Johnson had been succeeded 
by Grant, the number was raised to nine, and the 
legal tender decision given just before was presently 
reversed by the altered court. This method is plainly 
susceptible of further and possibly dangerous applica- 
tion. Suppose a Congress and President bent on doing 
something which the Supreme court deems contrary to 
the Constitution. They pass a statute. A case arises 
under it. The court on the hearing of the case unani- 
mously declares the statute to be null, as being beyond 



368 THE NATIONAL GOVERNMENT parti 

the powers of Congress. Congress forthwith passes and 
the President signs another statute more than doubling 
the number of the justices. The President appoints to 
the new justiceships men who are pledged to hold the 
former statute constitutional. The Senate confirms his 
appointments. Another case raising the validity of the 
disputed statute is brought up to the court. The new 
justices outvote the old ones : the statute is held valid : 
the security provided for the protection of the Consti- 
tution is gone like a morning mist. 

What prevents such assaults on the fundamental 
law, assaults which, however immoral in substance, 
would be perfectly legal in form ? Not the mechanism 
of government, for all its checks have been evaded. 
Not the conscience of the legislature and the President, 
for heated combatants seldom shrink from justifying the 
means by the end. Nothing but the fear of the people, 
whose broad good sense and attachment to the great 
principles of the Constitution may generally be relied on 
to condemn such a perversion of its forms. Yet if 
excitement has risen high over the country, a majority of 
the people may acquiesce; and then it matters little 
whether what is really a revolution be accomplished by 
openly violating or by merely distorting the forms of 
law. To the people we come sooner or later : it is upon 
their wisdom and self-restraint that the stability of the 
most cunningly devised scheme of government will in 
the last resort depend. 



CHAPTER XXV 

COMPARISON OF THE AMERICAN AND EUROPEAN SYSTEMS 

The relations to one another of the diflferent branches 
of the government in the United States are so remark- 
able and so full of instruction for other countries, 
that it seems desirable, even at the risk of a little 
repetition, to show by a comparison with the Cabinet or 
parliamentary system of European countries how this 
complex American machinery actually works. 

The English system on which have been modelled, 
of course with many variations, the systems of France, 
Belgium, Holland, Italy, Germany, Hungary (where, 
however, the English scheme has been compounded 
with an ancient and very interesting native - born 
constitution), Sweden, Norway, Denmark,^ Spain, and 
Portugal, as well as the constitutions of the great self- 
governing English colonies in North America and 
Australia — this English system places at the head of 
the state a person in whose name all executive acts are 
done, and who is (except in France) irresponsible and 
irremovable.^ His acts are done by the advice and on the 

1 In Denmark constitutional government seems still to subsist in 
theory, though for a good many years it has been suspended in practice. 

2 In the Bi'itish colonies the governor is irremovable by the colony, 
and irresponsible to its legislature, though responsible to and removable 
by the home government. 

VOL. I 2 B 



370 . THE NATIONAL GOVERNMENT parti 

responsibility of ministers chosen nominally by him, 
but really by the representatives of the people, usually, 
but not necessarily, from among the members of the 
legislature. The representatives are, therefore, through 
the agents whom they select, the true government of 
the country. When the representative assembly ceases 
to trust these agents, the latter resign, and a new set 
are appointed. Thus the executive as well as the legis- 
lative power really belongs to the majority of the re- 
presentative chamber, though in appointing agents, an 
expedient which its size makes needful, it is forced 
to leave in the hands of these agents a measure of 
discretion sufficient to make them appear distinct 
from it, and sometimes to tempt them to acts which 
their masters disapprove. As the legislature is thus in 
a sense executive, so the executive government, the 
council of ministers or cabinet, is in so far legislative 
that the initiation of measures rests very largely with 
them, and the carrying of measures through the Chamber 
demands their advocacy and counter pressure upon the 
majority of the representatives. They are not merely 
executive agents but also legislative leaders. One may 
say, indeed, that the legislative and executive functions 
are interwoven as closely under this system as under 
absolute monarchies, such as Imperial Rome or modem 
Russia; and the fact that taxation, while eflfected by 
means of legislation, is the indispensable engine of 
administration, shows how inseparable are these two 
apparently distinct powers. 

Under this system the sovereignty of the legislature 
may be more or less complete. It is most complete in 
France ; least complete in Germany and Prussia, where 
the power of the Emperor and King is great and not 
declining. But in all these countries not only are the 



CHAP. XXV AMERICAN AND EUROPEAN SYSTEMS 371 

legislature and executive in close touch with one 
another, but they settle their disputes without refer- 
ence to the judiciary. The courts of law cannot be 
invoked by the executive against the legislature, be- 
cause questions involving the validity of a legisla- 
tive act do not come before it, since the legislature is 
either completely sovereign, as in England, or the 
judge of its own competence, as in Belgium. The 
judiciary, in other words, does not enter into the 
consideration of the political part of the machinery of 
government. 

This system of so-called cabinet government seems to 
Europeans now, who observe it at work over a large part 
of the world, an obvious and simple system. We are 
apt to forget that it was never seen anywhere till the 
English developed it by slow degrees, and that it is a 
very delicate system, depending on habits, traditions, 
and understandings which are not easily set forth in 
words, much less transplanted to a new soil. 

We are also prone to forget how very recent it is. 
People commonly date it from the reign of King William 
the Third ; but it worked very irregularly till the Hano- 
verian kings came to the throne, and even then it at 
first worked by means of a monstrous system of bribery 
and place -mongering. In the days of George the 
Third the personal power of the Crown for a while 
revived and corruption declined.^ The executive head 

^ Corruption was possible, because the House of Commons did not 
look for support to the nation, its debates were scantily reported, it had 
little sense of responsibility. An active king was therefore able to assert 
himself against it, and to form a party in it, as weU as outside of it, which 
regarded him as its head. This forced the Whigs to throw themselves 
upon the nation at large ; the Tories did the same ; corruption withered 
away ; and as Parliament came more and more under the watchful eye 
of the people, and responsible to it, the influence of the king declined and 
vanished. 



372 THE NA TIONAL GO VERNMENT part i 

of the state was, during the latter decades of the century, 
a factor apart from his ministers. They were not then, 
as now, a mere committee of Parliament dependent 
upon Parliament, but rather a compromise between 
the king's wiU and the will of the paxKamentary 
majority. They deemed and declared themselves to 
owe a duty to the king conflicting with, sometimes 
overriding, their duty to Parliament. Those phrases 
of abasement before the Crown which when now 
employed by prime ministers amuse us by their 
remoteness from the realities of the case, then 
expressed realities. In 1787, when the Constitutional 
Convention met at Philadelphia, the Cabinet system 
of government was in England still immature. It was 
so immature that its true nature had not been per- 
ceived.^ And although we now can see that the tend- 
ency was really towards the depression of the Crown 
and the exaltation of Parliament, men might well, 
when they compared the influence of George III. with 
that exercised by George I.,^ argue in the terms of 
Dunning's famous resolution, that "the power of the 
Crown has increased, is increasing, and ought to be 
diminished." ^ 

^ Gouverneur Morris, however, one of the acutest minds in the Con- 
vention of 1787, remarked there, "Our President wiU be the British 
(Prime) Minister. K Mr. Fox had carried his India Bill, he would have 
made the Minister the King in form almost as well as in substance." 
—Elliot's Bfhaie^, i. 361. 

2 George IIL had the advantage of being a national king, whereas his 
two predecessors had been Germans by language and habits as weU as by 
blood. His popularity contributed to his influence in politics. Mrs. 
Papendiek's Diary contains some amusing illustrations of the exuberant 

. ,' demonstrations of '* loyalty " which he excited. When he went to Wey- 
' mouth for sea-bathing after his recovery from the first serious attack 
I of lunacy, crowds gathered along the shore, and bands of music struck 
y ^ 1 ^P " ^^ ^^® ^^® King " when he ducked his head beneath the brine. 

3 It is not easy to say when the principle of the absolute dependence 
of ministers on a parliamentary majority without regard to the wishes of 



CHAP. XXV AMERICAN AND EUROPEAN SYSTEMS 373 

The greatest problem that free peoples have to solve 
is how to enable the citizens at large to conduct or 
control the executive business of the state. England 
was in 1787 the only nation (the cantons of Switzer- 
land were so small as scarcely to be thought of) 
that had solved this problem, firstly, by the develop- 
ment of a representative system, secondly, by giving to 
her representatives a large authority over the execu- 
tive. The Constitutional Convention, therefore, turned 
its eyes to her when it sought to constitute a free govern- 
ment for the new nation which the " more perfect union " 
of the States was calling into conscious being. 

Very few of the members of the Convention had 
been in England so as to know her constitution, such as 
it then was, at first hand. Yet there were three sources 
whence light fell upon it, and for that light they were 
grateful. One was their experience in dealing with 
the mother country since the quarrel began. They 
saw in Britain an executive largely influenced by the 
personal volitions of the king, and in its conduct of 
colonial and foreign affairs largely detached from and 
independent of Parliament, since it was able to take 
tyrannical steps without the previous knowledge or 
consent of Parliament, and able afterwards to defend 

the Crown passed into a settled doctrine. (Needless to say that it has 
received no formaUy legal recognition, but is merely usage.) The long 
coincidence during the dominance of Pitt and his Tory successors down 
till 1827 of the wishes and interests of the Crown with those of the 
parliamentary majority prevented the question from arising in a practical 
shape. Even in 1827 Mr. Canning writes to J. W. Croker : — 

" Am I to understand, then, that you consider the King [George IV.] 
as completely in the hands of the Tory aristocracy as his father, or rather * 
as George II. was in the hands of the Whigs ? If so, George III. reigned 
and Mr. Pitt (both father and son) administered the Government in vain. 
I have a better opinion of the real vigour of the Crown when it chooses to 
put forth its own strength, and I am not without some reliance on the 
body of the people"! — Oroker Correspondence, vol. i. p. 368. 



374 THE NATIONAL GOVERNMENT part i 

those steps by alleging a necessity whereof Parliament, 
wanting confidential information, could imperfectly 
judge. It was in these colonial and foreign aflfairs that 
the power of the Crown chiefly lay (as, indeed, to this 
day the authority of Parliament over the executive is 
smaller here than in any other department, because 
secrecy and promptitude are more essential), so they 
could not be expected to know for how much less the 
king counted in domestic affairs. Moreover, there was 
believed to be often a secret junto which really con- 
trolled the ministry, because acting in concert with the 
Crown ; and the Crown had powerful engines at its dis- 
posal, bribes and honours, pensions and places, engines 
irresistible by the average virtue of representatives 
whose words and votes were not reported, and nearly 
half of whom were the nominees of some magnate.^ 

The second source was the legal presentation of the 
EngKsh Constitution in scientific text-books, and par- 
ticularly in Blackstone, whose famous Commentaries^ 
first published in 1765 (their substance having been 
delivered as professorial lectures at Oxford in 1758 and 
several succeeding years), had quickly become the standard 
authority on the subject. Now Blackstone, as is natural 
in a lawyer who looks rather to the strict letter of the 
law than to the practice which had grown up modifying 
it, describes the royal prerogative in terms more appro- 
priate to the days of the Stuarts than to those in 
which he wrote, and dwells on the independence of the 
executive, while also declaring the withholding from it 
of legislative power to be essential to freedom.^ 

^ The Crown itself had pocket boroughs. Hamilton doubted whether 
the British Constitution could be worked without corruption. 

2 See Blackstone, Commentaries, bk. i. chap. iL — "Whenever the 
power of making and that of enforcing the laws are united together, there 
can be no public liberty. . . . Where the legislative and executive 
authority are in distinct hands, the former will take care not to en- 



CHAP. XXV AMERICAN AND EUROPEAN SYSTEMS 375 

The third source was the view of the Enorlish Con- 
stitution given by the political philosophers of the 
eighteenth century, among whom, since he was by far 
the most important, we need look at Montesquieu alone. 

When the famous treatise on The Sphit of Laws 
appeared in 1748, a treatise belonging to the small 
class of books which permanently turn the course of 
human thought, and which, unlike St. Augustine's 
City of God, turned it immediately instead of hav- 
ing to wait for centuries till the hour of its power 
arrived, it dwelt upon the separation of the executive, 
legislative, and judicial powers in the British Constitu- 
tion as the most remarkable feature of that system. 
Accustomed to see the two former powers, and to some 
extent the third also, exercised by or under the direct 
control of the French monarch, Montesquieu attributed 
English freedom to their separation.^ The King of Great 
Britain then possessed a larger prerogative than he has 
now, and as even then it seemed on paper much larger 
than it really was, it was natural that a foreign observer 

trust the latter with so large a power as may tend to the subversion 
of its own independence, and therewith of the liberty of the subject. 
. . . The Crown cannot of itself begin any alteration in the present 
established law ; but it may approve or disapprove of the alterations 
suggested and consented to by the two Houses. The legislative, there- 
fore, cannot abridge the executive power of any rights which it now 
has by law without its own consent." There is no hint here, or 
in chap. viL on the royal prerogative, that the royal power of dis- 
approval had not been in fact exercised for some fifty years. Black- 
stone does not quote Montesquieu for the particular proposition that 
the powers must be separated, but has evidently been influenced by 
him. A little later he cites a famous dictum, "The President Mon- 
tesquieu, though I trust too hastily, presages that as Rome, Sparta, and 
Carthage have lost their liberty and perished, so the Constitution of 
England will in time lose its liberty — will perish : it wiU perish whenever 
the legislative power shall become more corrupt than the executive." 

^ Locke had already remarked {On Civil Government, chap, xiv.) that 
**the legislative and executive powers are in distinct hands in all moder- 
ated monarchies and weU-framed govemmenta" 



376 THE NATIONAL GOVERNMENT parti 

should underrate the executive character of the British 
Parliament and overrate the executive authority of 
the monarch as a person. Now Montesquieu's treatise 
was taken by the thinkers of the next generation as a 
sort of Bible of political philosophy. Hamilton and 
Madison, the two earKest exponents of the American 
Constitution they had done so much to create, cite it 
in the Federalist much as the schoolmen cite Aristotle, 
that is, they cite it as an authority which everybody 
will recognize to be binding ; and Madison in particular 
constantly refers to this separation of the legislative, 
executive, and judicial powers as the distinguishing 
note of a free government. 

These views of the British Constitution tallied with 
and were strengthened by the ideas and habits formed 
in the Americans by their experience of representative 
government in the colonies, ideas and habits which 
were after all the dominant factor in the construc- 
tion of their political system. In these colonies the 
executive power had been vested either in a governor 
sent from England by the Crown, or in certain pro- 
prietors, as they were called, persons to whom the 
English Crown had granted hereditary rights in a 
province.^ Along with these authorities there had 
existed representative assemblies, who made laws and 
voted money for the purposes of their respective 
commonwealths. They did not control the governor 
because his commission issued from the British 
Crown, and he was responsible thereto and not to 
the Colonial Government. A governor had no parlia- 
mentary cabinet, but only ofl&cials responsible to himself 
and the Crown. His veto on acts of the colonial legis- 
lature was frequently used; and that body, with no 

^ Maryland under Lord Baltimore is the familiar example. 



CHAP. XXV AMERICAN AND EUROPEAN SYSTEMS m 

means of controlling his conduct other than the refusal 
to vote money, was a legislature and nothing more. 
Thus the Americans found and admired in their colonial 
(or State) systems, a separation of the legislative from 
the executive branch, more complete than in England, 
because in the colonies no ministers sat in the legisla- 
ture. And being already proud of their freedom, they 
attributed its amplitude chiefly to this cause. 

From their colonial experience, coupled with these 
notions of the British Constitution, the men of 1787 
drew three conclusions: Firstly, that the vesting of 
the executive and the legislative powers in different 
hands was the normal and natural feature of a free 
government. Secondly, that the power of the executive 
was dangerous to liberty, and must be kept within well- 
defined boundaries. Thirdly, that in order to check 
the head of the state it was necessary not only to define 
his powers, and appoint him for a limited period, but 
also to destroy his opportunities of influencing the 
legislature. Conceiving that ministers, as named by 
and acting under the orders of the President, would be 
his instruments rather than faithful representatives of 
the people, they resolved to prevent them from holding 
this double character, and therefore forbade " any person 
holding office under the United States " to be a member 
of either House. ^ They deemed that in this way 
they had rendered their legislature pure, independent, 
vigilant, the servant of the people, the foe of arbi- 
trary power. Omnipotent, however, the framers of 

1 In 1700 the English Act of Settlement enacted that "no person 
who has an office or a place of profit under the King shall be capable of 
serving as a member of the House of Commons." This provision never 
took effect, having been repealed by the Act 4 Anne, c. 8. But the hold- 
ing of the great majority of offices under the Crown is now, by statute, 
a disqualification for sitting in the House of Commons. See Anson, Law 
and Custom of the Constitution^ vol. i. p. 174. 



378' THE NATIONAL GOVERNMENT parti 

the Constitution did not mean to make it. They 
were sensible of the opposite dangers which might 
flow from a feeble and dependent executive. The 
proposal made in the first draft of the Constitution that 
Congress should elect the President, was abandoned, 
lest he should be merely its creature and unable to 
check it. To strengthen his position, and prevent 
intrigues among members of Congress for this supreme 
ofl&ce, it was settled that the people should themselves, 
through certain electors appointed for the purpose, 
choose the President. By giving him the better status 
of a popular, though indirect, mandate, he became 
independent of Congress, and was encouraged to use his 
veto, which a mere nominee of Congress might have 
hesitated to do. Thus it was believed in 1787 that a 
due balance had been arrived at, the independence of 
Congress being secured on the one side and the inde- 
pendence of the President on the other. Each power 
holding the other in check, the people, jealous of their 
hardly- won liberties, would be courted by each, and 
safe from the encroachments of either. 

There was of course the risk that controversies as to 
their respective rights and powers would arise between 
these two departments. But the creation of a court 
entitled to place an authoritative interpretation upon 
the Constitution in which the supreme will of the 
people was expressed, provided a remedy available in 
many, if not in all, of such cases, and a security for 
the faithful observance of the Constitution which Eng- 
land did not, and under her system of an omnipotent 
Parliament could not, possess. 

''They builded better than they knew." They 
divided the legislature from the executive so com- 
pletely as to make each not only independent, but weak 



CHAP. XXV AMERICAN AND EUROPEAN SYSTEMS 379 

even in its own proper sphere. The President was 
debarred from carrying Congress along with him, as a 
popular prime minister may carry Parliament in Eng- 
land, to effect some sweeping change. He is fettered in 
foreign policy, and in appointments, by the concurrent 
rights of the Senate. He is forbidden to appeal at a 
crisis from Congress to the country. Nevertheless his 
office retains a measure of solid independence in the fact 
that the nation regards him as a direct representative 
and embodiment of its majesty, while the circumstance 
that he holds office for four years only makes it possible 
for him to do acts of power during those four years 
which would excite alarm from a permanent sovereign. 
Entrenched behind the ramparts of a rigid Constitution, 
he has retained rights of which his prototype the English 
king has been gradually stripped. Congress on the 
other hand was weakened, as compared with the British 
Parliament in which one House has become dominant, 
by its division into two co-equal houses, whose disagree- 
ment paralyses legislative action. And it lost that 
direct control over the executive which the presence of 
ministers in the legislature, and their dependence upon 
a majority of the popular House, give to the Parlia- 
ments of Britain and her colonies. It has diverged 
widely from the English original which it seemed likely, 
with only a slight difference, to reproduce. 

The British House of Commons has grown to the 
stature of a supreme executive as well as legislative 
council, acting not only by its properly legislative 
power, but through its right to displace ministers 
by a resolution of want of confidence, and to compel 
the sovereign to employ such servants as it ap- 
proves. Congress remains a pure legislature, unable 
to displace a minister, unable to choose the agents 



38o THE NATIONAL GOVERNMENT parti 

by whom its laws are to be carried out, and having 
hitherto failed to develop that internal organization 
which a large assembly needs in order to frame and 
successfully pursue definite schemes of policy. Never- 
theless, so far-reaching is the power of legislation. Con- 
gress has encroached, and may encroach still farther, 
upon the sphere of the executive. It encroaches not 
merely with a conscious purpose, but because the law of 
its being has forced it to create in its committees bodies 
whose expansion necessarily presses on the executive. 
It encroaches because it is restless, unwearied, always 
drawn by the progress of events into new fields of labour. 
These observations may suffice to show why the 
Fathers of the Constitution did not adopt the English 
parliamentary or Cabinet system. They could not adopt 
it because they did not know of its existence. They 
did not know of it because it was still immature, because 
Englishmen themselves had not understood it, because 
the recognized authorities did not mention it.^ There is 
not a word in Blackstone, much less in Montesquieu, as 
to the duty of ministers to resign at the bidding of the 
House of Commons, nor anything to indicate that the 
whole life of the House of Commons was destined to 
centre in the leadership of ministers. Whether the 
Fathers would have imitated the cabinet system had 
it been proposed to them as a model may be doubted. 

^ Roger Sherman saw the importance of the English Cabinet, though 
he looked on it as a mere engine in the Crown's hands. " The nation," 
he observed, in the Convention of 1787, **is in fact governed by the 
Cabinet council, who are the creatures of the Crown. The consent of 
Parliament is necessary to give sanction to their measures, and this they 
easily obtain by the influence of the Crown in appointing to all offices of 
honour and jprofit." It must be remembered that the House of Lords 
was far more powerful in 1787 than it is now, not only as a branch of the 
legislature, but in respect of the boroughs owned by the leading peers : 
and therefore the dependence of the ministry on the House of Commons 
was a less prominent feature of the Constitution than it is now. 



CHAP. XXV AMERICAN AND EUROPEAN SYSTEMS 381 

They would probably have thought that the creation of 
a frame of government so unified, so strong, so capable 
of swiftly and irresistibly accomplishing the purposes 
of a transitory majority as we now perceive it to be, 
might prove dangerous to those liberties of the several 
States, as well as of individual citizens, which filled the 
whole background of their landscape. But as the idea 
never presented itself, we cannot say that it was rejected, 
nor cite the course they took as an expression of their 
judgment against the system under which England and 
her colonies have so far prospered. 

That system could not be deemed to have reached 
its maturity till the power of the people at large had 
been established by the Reform Act of 1832. For its 
essence resides in the delicate equipoise it creates be- 
tween the three powers, the ministry, the House of 
Commons, and the people. The House is strong, because 
it can call the ministry to account for every act, and 
can, by refusing supplies, compel their resignation. The 
ministry are not defenceless, because they can dissolve 
Parliament, and ask the people to judge between it and 
them. Parliament, when it displaces a ministry, does 
not strike at executive authority : it merely changes its 
agents. The ministry, when they dissolve Parliament, 
do not attack Parliament as an institution : they recog- 
nize the supremacy of the body in asking the country to 
change the individuals who compose it. Both the House 
of Commons and the ministry act and move in the full 
view of the people, who sit as arbiters, prepared to judge 
in any controversy that may arise. The House is in 
touch with the people, because every member must 
watch the lights and shadows of sentiment which play 
over his own constituency. The ministry are in touch 
with the people, because they are not only themselves 



382 THE NA TIONAL GO VERNMENT part i 



representatives, but are heads of a great party, sensitive 
to its feelings, forced to weigh the eflfect of every act 
they do upon the confidence which their party places 
in them. The only conjuncture which this system of 
" checks and balances " does not provide for is that of a 
ministry supported by a parliamentary majority pursuing 
a policy which was not presented to the people at the 
last general election, and of which the bulk of the people 
in fact disapprove.^ This is a real danger, yet one which 
can seldom last long enough to work grave mischief, for 
the organs of public opinion are now so potent, and the 
opportunities for its expression so numerous, that the 
anger of a popular majority, perhaps even of a very strong 
minority, is almost certain to alarm both the ministry and 
the House, and to arrest them in their course.^ 

The drawback to this system of exquisite equipoise 
is the liability of its equilibrium to be frequently dis- 
turbed, each disturbance involving either a change of 
government, with immense temporary inconvenience to 
the departments, or a general election, with immense 
expenditure of money and trouble in the country. It is 

^ The recent leading case on this subject is that of Lord Beaconsfield's 
Government from 1876 till 1880. It followed, during the years 1877 
and 1878, a foreign policy which the bulk of the electors apparently dis- 
approved (though some persons hold that there was not a disapproving 
majority in the country tiU 1879), but which Parliament sanctioned by 
large majoritiea But the vehement popular agitation of 1876-78 seems 
to have had the effect of considerably modifying the policy of the ministry, 
though it could not whoUy change its direction. 

2 " The dangers arising from a party spirit in Parliament exceeding 
that of the nation, and of a selfishness in Parliament contradicting the true 
interest of the nation, are not great dangers in a country where the mind 
of the nation is steadily political, and where its control over its representa- 
tives is constant. A steady opposition to a formed public opinion is hardly 
possible in our House of Commons, so incessant is the national attention 
to politics, and so keen the fear in the mind of each member that he may 
lose his valued seat" — Walter Bagehot, English Constitution, p. 241. These 
remarks of the most acute of English political writers are even more true 
now than they were in 1872. 



CHAP. XXV AMERICAN AND EUROPEAN SYSTEMS 383 

a system whose successful working presupposes the 
existence of two great parties and no more, parties 
each strong enough to restrain the violence of the other, 
yet one of them steadily preponderant in any given 
House of Commons. Where a third,* perhaps a fourth, 
party appears, the conditions are changed. The scales 
of Parliament oscillate as the weight of this detached 
group is thrown on one side or the other ; dissolutions 
become more frequent, and even dissolutions may fail 
to restore stability. The recent history of the French 
Kepublic shows the diflSculties of working a Chamber 
composed of groups : nor is the same source of diflSculty 
unknown in England. 

It is worth while to compare the form which a con- 
stitutional struggle takes under the Cabinet system and 
under that of America. 

In England, if the executive ministry displeases the 
House of Commons, the House passes an adverse vote. 
The ministry have their choice to resign or to dissolve 
Parliament. If they resign, a new ministry is appointed 
from the party which has proved itself strongest in the 
House of Commons; and co-operation being restored 
between the legislature and the executive, public 
business proceeds. If, on the other hand, the ministry 
dissolve Parliament, a new Parliament is sent up which, 
if favourable to the existing cabinet, keeps them in 
oflSce, if unfavourable, dismisses them forthwith.^ 
Accord is in either case restored. Should the difference 
arise between the House of Lords and a ministry sup- 

^ Recent instances, dating from Mr. Disraeli's resignation in December 
1868, when the results of the election of that year were ascertained, have 
established the usage that a ministry quits office, without waiting to be 
turned out, when they know that the election has gone against them. 
I^Ir. Gladstone resigned forthwith after the General Elections of 1874 and 
1886, Lord Beaconsfield after that of 1880. The usage, however, is not 
yet a rule of the Constitution, though it seems on the way to become one. 



384 THE NATIONAL GOVERNMENT parti 

ported by the House of Commons, and the former 
persist in rejecting a bill which the Commons send 
up, a dissolution is the constitutional remedy; and 
if the newly - elected House of Commons reasserts 
the view of its predecessor, the Lords, according 
to the now recognized constitutional practice, yield 
at once. Should they, however, still stand out, there 
remains the extreme expedient, threatened in 1832, 
but never yet resorted to, of a creation by the sove- 
reign {i.e. the ministry) of new peers suflScient to turn 
the balance of votes in the Upper House. Practically 
the ultimate decision always rests with the people, that 
is to say, with the party which for the moment com- 
mands a majority of electoral votes. This method of 
cutting knots applies to all differences that can arise 
between executive and legislature. It is a swift and 
effective method ; in this swiftness and effectiveness lie 
its dangers as well as its merits. 

In America a dispute between the President and 
Congress may arise over an executive act or over a bill. 
If over an executive act, an appointment or a treaty, 
one branch of Congress, the Senate, can check the 
President, that is, can prevent him from doing what he 
wishes, but cannot make him do what they wisL If 
over a bill which the President has returned to Congress 
unsigned, the two Houses can, by a two- thirds majority, 
pass it over his veto, and so end the quarrel ; though 
the carrying out of the bill in its details must be left to 
him and his ministers, whose dislike of it may render 
them unwilling and therefore unsuitable agents. Should 
there not be a two-thirds majority, the bill drops ; 
and however important the question may be, however 
essential to the country some prompt dealing with it, 
either in the sense desired by the majority of Congress 



CHAP. XXV AMERICAN AND EUROPEAN SYSTEMS 385 

or in that preferred by the President, nothing can 
be done till the current term of Congress expires. 
The matter is then remitted to the people. If the 
President has still two more years in oflSce, the people 
may signify their approval of his policy by electing a 
House in political agreement with him, or disapprove 
it by re-electing a hostile House. If the election of a 
new President coincides with that of the new House, 
the people have a second means provided of expressing 
their judgment. They may choose not only a House 
of the same or an opposite complexion to the last, but 
a President of the same or an opposite complexion. 
Anyhow they can now establish accord between one 
house of Congress and the executive.^ The Senate, how- 
ever, may still remain opposed to the President, and may 
not be brought into harmony with him until a suflScient 
time has elapsed for the majority in it to be changed 
by the choice of new senators by the State legislatures. 
This is a slower method than that of Britain. It may 
fail in a crisis needing immediate action ; but it escapes 
the danger of a hurried and perhaps irrevocable decision. 
There exists between England and the United States 
a difference which is full of interest. In England the 
legislative branch has become supreme, and it is con- 
sidered by Englishmen a merit in their system that the 
practical executive of the country is directly responsible 
to the House of Commons. In the United States, how- 
ever, not only in the national government, but in every 

^ It is of course possible that the people may elect at the same time a 
President belonging to one party and a House the majority whereof belongs 
to the other party. This happened in 1876, when, however, the presi- 
dential election was disputed. It is rendered possible by the fact that the 
President is elected on a different plan from the House, the smaller States 
having relatively more weight in a presidential election, and the presidential 
electors being now chosen, ine ach State, by "general ticket," not in 
districts. 

VOL. I 2 c 



386 THE NATIONAL GOVERNMENT parti 

one of the States, the exactly opposite theory is proceeded 
upon — that the executive should be wholly independent 
of the legislative branch. Americans understand that this 
scheme involves a loss of power and eflSciency, but they 
believe that it makes greatly for safety in a popular 
government. They expect the executive and the legis- 
lature to work together as well as they can, and public 
opinion does usually compel a degree of co-operation 
and efficiency which perhaps could not be expected 
theoredeau/ It i. JinteLting com:n.ntary on the 
tendencies of democratic government, that in America 
reliance is coming to be placed more and more, in the 
nation, in the State, and in the city, upon the veto of the 
Executive as a protection to the community against the 
legislative branch. Weak Executives frequently do 
harm, but a strong Executive has rarely abused popular 
confidence. On the other hand, instances where the 
Executive, by the use of his veto power, has arrested 
mischiefs due to the action of the legislature are by no 
means rare. This circumstance leads some Americans 
to believe that the day is not far distant when in 
England some sort of veto power, or other constitu- 
tional safeguard, must be interposed to protect the 
people against their Parliament.^ 

While some bid England borrow from her daughter, 
other Americans conceive that the separation of the 
legislature from the executive has been carried too far 
in the United States, and suggest that it would be an 
improvement if the ministers of the President were 
permitted to appear in both Houses of Congress to 
answer questions, perhaps even to join in debate. I 
have no space to discuss the merits of this proposal, 
but must observe that it might lead to changes more 

^ See Note to Chapter XXXV. at the end of this Tolmne. 



CHAP. XXV AMERICAN AND EUROPEAN SYSTEMS 387 

extensive than its advocates seem to contemplate. The 
more the President's ministers come into contact with 
Congress, the more difficult will it be to maintain the 
independence of Congress which he and they now pos- 
sess. When not long ago the Norwegian Stor Thing 
forced the King of Sweden and Norway to consent 
to his ministers appearing in that legislature, the king, 
perceiving the import of the concession, resolved to 
choose in future ministers in accord with the party 
holding a majority in the Stor Thing. It is hard to say, 
when one begins to make alterations in an old house, 
how far one will be led on in rebuilding, and I doubt 
whether this change in the present American system, 
possibly in itself desirable, might not be found to involve 
a reconstruction large enough to put a new face upon 
several parts of that system. 

In the history of the United States there have been 
four serious confficts between the legislature and the 
executive. The first was that between President 
Jackson and Congress. It ended in Jackson's favour, 
for he got his way ; but he prevailed because during the 
time when both Houses were against him, his opponents 
had not a two-thirds majority. In the latter part of the 
struggle the (re-elected) House was with him ; and before 
he had quitted office his friends obtained a majority 
in the always -changing Senate. But his success was 
not so much the success of the executive office as of 
a particular President popular with the masses. The. 
second contest, which was between President Tyler and 
both Houses of Congress, was a drawn battle, because the 
majority in the Houses fell short of two- thirds. In the 
third, between President Johnson and Congress, Congress 
prevailed ; the enemies of the President having, owing 
to the disfranchisement of most Southern States, an over- 



388 THE NATIONAL GOVERNMENT parti 

powering majority in both Houses, and by that majority 
canying over his veto a series of Acts so peremptory 
that even his reluctance to obey them could not destroy, 
though it sometimes marred, their eflSciency. In the 
fourth case, referred to in a previous chapter, the 
victory remained with the President, because the Con- 
gressional majority against him was slender. But a 
presidential victory is usually a negative victory. It 
consists not in his getting what he wants, but in his 
preventing Congress from getting what it wants.^ The 
practical result of the American arrangements thus comes 
to be that when one party possesses a large majority in 
Congress it can overpower the President, taking from 
him all but a few strictly reserved functions, such as 
those of pardoning, of making promotions in the army 
and navy, and of negotiating (not of concluding treaties, 
for these require the assent of the Senate) with foreign 
states. Where parties are pretty equally divided, i.e. 
when the majority is one way in the Senate, the other 
way in the House, or when there is only a small majority 
against the President in both Houses, the President is 
in so far free that new fetters cannot be laid upon him ; 
but he must move under those which previous legisla- 
tion has imposed, and can take no step for which new 
legislation is needed. 

It is another and a remarkable consequence of the 
absence of cabinet government in America, that there 
is also no party government in the European sense. 
Party government in France, Italy, and England 
means, that one set of men, united, or professing to 

^ In the famous case of President Jackson's removal of the government 
deposits of money from the United States Bank, the President did accom- 
plish his object But this was a very exceptional case, because one which 
had remained within the executive discretion of the President since no 
statute had happened to provide for it. 



CHAP. XXV AMERICAN AND EUROPEAN SYSTEMS 389 

be united, by holding one set of opinions, have 
obtained control of the whole machinery of govern- 
ment, and are working it in conformity with those 
opinions. Their majority in the country is represented 
by a majority in the legislature, and to this majority 
the ministry of necessity belongs. The ministry is the 
supreme committee of the party, and controls all the 
foreign as well as domestic ajBfairs of the nation, because 
the majority is deemed to be the nation. It is other- 
wise in America. Men do, no doubt, talk of one party 
as being " in power," meaning thereby the party to which 
the then President belongs. But they do so because 
that party enjoys the spoils of oflSce, in which to so many 
politicians the value of power consists. They do so also 
because in the early days the party which prevailed 
in the legislative usually prevailed also in the executive 
department, and because the presidential election was, 
and still is, the main struggle which proclaimed the pre- 
dominance of one or other party.^ 

But the Americans, when they speak of the adminis- 
tration party as the party in power, have, in borrowing 
an English phrase, applied it to utterly different facts. 
Their " party in power " need have no " power " beyond 
that of securing places for its adherents. It may be 
in a minority in one House of Congress, in which 
event it accomplishes nothing, but can at most merely 
arrest adverse legislation, or in a small minority in 
both Houses of Congress, in which event it must submit 
to see many things done which it dislikes. And if 

^ The history of the Republic divides itself in the mind of most 
Americans into a succession of Presidents and Administrations, just as old- 
fashioned historians divided the history of England by the reigns of kings, 
a tolerable way of reckoning in the days of Edward the Third and Richard 
the Second, when the personal gifts of the sovereign were a chief factor in 
affairs, but absurd in the days of George the Fourth and William the 
Fourth. 



390 THE NATIONAL GOVERNMENT parti 

its enemies control the Senate, even its executive arm 
is paralysed. Though party feeling has generally been 
stronger in America than in England, and even now 
covers a larger proportion of the voters, and enforces a 
stricter discipline, party government is distinctly weaker. 

Those who lament the violence of European factions 
may fancy America an Elysium where legislation is 
just and reasonable, because free from bias, where pure 
and enlarged views of national interest override the 
selfish designs of politicians. It would be nearer the 
truth to say that the absence of party control operates 
chiefly to make laws less consistent, and to prevent 
extended schemes of policy from being framed, because 
the chance of giving continuous efibct to them is small. 
The natural history of the party system belongs to a 
later part of this book. I will only here observe that, 
while this system is complete and well compacted in 
every other respect, the Constitution has denied to it 
some of the means which European methods afford of 
acting through both the legislature and the executive at 
once on the direct and daily government of the country. 

We are now in a position to sum up the practical 
results of the system which purports to separate Congress 
from the executive, instead of uniting them as they are 
united under a cabinet government. I say " purports 
to separate," because it is plain that the separation, 
significant as it is, is less complete than current language 
imports, or than the Fathers of the Constitution would 
seem to have intended. The necessary coherence of the 
two powers baffled them. These results are five : — 

The President and his ministers have no initiative 
in Congress, little influence over Congress, except 
what they can exert upon individual members 
through the bestowal of patronage. 






CHAP. XXV AMERICAN AND EUROPEAN SYSTEMS 391 

Congress has, together with unlimited powers of 
inquiry, imperfect powers of control over the 
administrative departments. 
The nation does not always know how or where to fix 
responsibility for misfeasance or neglect. The 
person and bodies concerned in making and 
executing the laws are so related to one another 
that each can generally shift the burden of 
blame on some one else, and no one acts under 
the full sense of direct accountability. 
There is a loss of force by friction — i.e. part of the 
energy, force, and time of the men and bodies 
that make up the government is dissipated in 
struggles with one another. This belongs to 
all free governments, because all free govern- 
ments rely upon checks. But the more checks, 
the more friction. 
There is a risk that executive vigour and promptitude 

may be found wanting at critical moments. 
We may include these defects in one general expres- 
sion. There is in the American government, considered 
as a whole, a want of unity. Its branches are uncon- 
nected ; their efforts are not directed to one aim, do not 
produce one harmonious result. The sailors, the helms- 
man, the engineer, do not seem to have one purpose or 
obey one will, so that instead of making steady way the 
vessel may pursue a devious or zigzag course, and some- 
times merely turn round and round in the water. The 
more closely any one watches from year to year the history 
of free governments, and himself swims in the deep-eddy- 
ing time current, the more does he feel that current's force, 
so that human foresight and purpose seem to count for 
little, and ministers and parliaments to be swept along 
they know not whither by some overmastering fate or 



392 THE NATIONAL GOVERNMENT parti 

overruling providence. But this feeling is stronger in 
America than in Europe, because in America such powers 
as exist act with little concert and resign themselves 
to a conscious impotence. Clouds arise, blot out the 
sun overhead, and burst in a tempest ; the tempest 
passes, and leaves the blue above bright as before, but 
at the same moment other clouds are already begin- 
ning to peer over the horizon. Parties are formed 
and dissolved, compromises are settled and assailed and 
violated, wars break out and are fought through and 
forgotten, new problems begin to show themselves, 
and the civil powers. Presidents, and Cabinets, and State 
governments, and Houses of Congress, seem to have as 
little to do with all these changes, as little ability to 
foresee or avert or resist them, as the farmer, who sees 
approaching the tornado which will uproot his crop, has 
power to stay its devastating course. 

A President can do little, for he does not lead either 
Congress or the nation. Congress cannot guide or stimu- 
late the President, nor replace him by a man fitter for 
the emergency. The Cabinet neither receive a policy 
from Congress nor give one to it. Each power in the 
state goes its own way, or wastes precious moments in 
discussing which way it shall go, and that which comes 
to pass seems to be a result not of the action of the 
legal organs of the state, but of some larger force which 
at one time uses their discord as its means, at another 
neglects them altogether. This at least is the impres- 
sion which the history of the greatest problem and 
greatest struggle that America has seen, the struggle of 
the slaveholders against the Free Soil and Union party, 
culminating in the war of the rebellion, makes upon one 
who looking back on its events sees them all as parts of 
one drama. The carefully devised machinery of the 



CHAP. XXV AMERICAN AND EUROPEAN SYSTEMS 393 

Constitution did little to solve that problem or avert 
that struggle. The nation asserted itself at last, but 
not till this machinery had failed to furnish a peaceful 
means of trying the real strength of the parties, so as 
to give the victory to one or to settle a compromise 
between them. 

Not wholly dissimilar was the course of events in 
the first years of the French Kevolution. The Constitu- 
tion framed by the National Assembly in 1791 so limited 
the functions and authority of each power in the state 
that no one person, no one body, was capable of leading 
either the nation or the legislature, or of framing and 
maintaining a constructive policy. Things were left to 
take their own course. The boat drifted to the rapids, 
and the rapids hurried her over the precipice.^ 

This want of unity is painfully felt in a crisis. When 
a sudden crisis comes upon a free state, the executive 
needs two things, a large command of money and powers 
in excess of those allowed at ordinary times. Under the 
European system the duty of meeting such a crisis is felt 
to devolve as much on the representative Chamber as 
on the ministers who are its agents. The Chamber is 
therefore at once appealed to for supplies, and for such 
legislation as the occasion demands. When these have 
been given, the ministry moves on with the weight of the 
people behind it ; and as it is accustomed to work at all 
times with the Chamber, and the Chamber with it, the 
piston plays smoothly and quickly in the cylinder. In 
America the President has at ordinary times little to do 
with Congress, while Congress is unaccustomed to deal 

^ This Constitution of 1791 was framed under the same idea of the 
need for separating the executive and legislative departments which pre- 
vailed at Philadelphia in 1787. For want of a legitimate supreme power, 
power at last fell into the hands of the Committee of Public Safety, and 
afterwards of the Directory. 



394' THE NATIONAL GOVERNMENT parti 

with executive questions. Its macliinery, and especi- 
ally the absence of ministerial leaders and consequent 
want of organization, unfit it for promptly confronting 
practical troubles. It is apt to be sparing of supplies, 
and of that confidence which doubles the value of sup- 
plies. Jealousies of the executive, which are proper in 
quiet times and natural towards those with whom Con- 
gress has little direct intercourse, may now be perilous, 
yet how is Congress to trust persons not members of 
its own body nor directly amenable to its control ? 
When dangers thicken the only device may be the Roman 
one of a temporary dictatorship. Something like this 
happened in the War of Secession, for the powers then 
conferred upon President Lincoln, or exercised without 
congressional censure by him, were almost as much in 
excess of those enjoyed under the ordinary law as the 
authority of a Roman dictator exceeded that of a Roman 
consul,^ Fortunately the habits of legality, which lie 
deep in the American as they did in the Roman people, 
reasserted themselves after the war was over, as they 
were wont to do at Rome in her earlier and better days. 
When the squall had passed the ship righted, and she 
has pursued her subsequent course on as even a keel as 
before. 

The defects of the tools are the glory of the work- 
man. The more completely self-acting is the machine, 

1 There is a story that President Lincoln said to Salmon P. Chase, 
his secretary of the treasury, in the early days of the war : " These rebels 
are violating the Constitution to destroy the Union. I will violate the 
Constitution if necessary to save the Union ; and I suspect, Chase, that 
our Constitution is going to have a rough time of it before we get done 
with this row." Mr. Hay, however, the distinguished biographer of Lin- 
coln, to whom I have applied for information, doubts the authenticity of 
the anecdote, as does also Mr. Robert T. Lincoln. President Lincoln 
usually argued that his use of extraordinary powers was provided for in 
the Constitution. See, however, the passage in his so-caUed Hodges 
Letter, quoted in a note to Chapter XXXIV. 



CHAP. XXV AMERICAN AND EUROPEAN SYSTEMS 395 

the smaller is the intelligence needed to work it; the 
more liable it is to derangement, so much greater must 
be the skill and care applied by one who tends it. The 
English Constitution, which we admire as a masterpiece 
of delicate equipoises and complicated mechanism, would 
anywhere but in England be full of difficulties and 
dangers. It stands and prospers in virtue of the 
traditions that still live among English statesmen 
and the reverence that has ruled English citizens. 
It works by a body of understandings which no writer 
can formulate, and of habits which centuries have 
been needed to instil. So the American people have a 
practical aptitude for politics, a clearness of vision and 
capacity for self-control never equalled by any other 
nation. In 1861 they brushed aside their darling 
legalities, allowed the executive to exert novel powers, 
passed Ughtly laws whose constitutionaHty remains 
doubtful, raised an enormous army, and contracted 
a prodigious debt. Romans could not have been 
more energetic in their sense of civic duty, nor more 
trustful to their magistrates. When the emergency 
had passed away the torrent which had overspread the 
plain fell back at once into its safe and well-worn 
channel. The reign of legality returned ; and only four 
years after the power of the executive had reached its 
highest point in the hands of President Lincoln, it was 
reduced to its lowest point in those of President John- 
son. Such a people can work any Constitution. The 
danger for them is that this reliance on their skill and 
their star may make them heedless of the faults of their 
political machinery, slow to devise improvements which 
are best applied in quiet times. 



oovKKJCMianr 



Tmw iwrtmul wliirli lifiN \Hutn w) far giT^n c^Tiifr wurfcmg 
mI* iIim AtiiMt'irMti (invnrnmcnt liaB been nkftcttsEazilT ar 
fMMuiMtil ndliMrnr itN tnorhaniHtn than of hs spcccL I 
MMMlhud i^hMmtMnr, iIh toinpor and colonr, so to speak 



fMu»ilv »lo|HMhl uu tho party Bystem by which it ii 
wnvluuL uuil ou \vl\at may ho ntllccl the political habitrr— fi 
\^l I ho pov^ph^ *ri\o?*o will ho tloRcribed in later 



\\\^\s\ hv^\\o\oi\ hot\Mv quitting the study of the constitu. 



\\\<\\\\ \^\\\<s\\^ \\( vjs^vonuuoMt. it is well to sum up th e 
vvv^Un^^^u^> \\v h>^\v^ Uvu Uxl to mtvke, and to add a fe^^B^ 
Vnh^^^V^^ ts^^' wkus^h uv^ ti55h^ }xbco could be found i — ni 
^^\^s^^UHV^ v'Kx^^^v^<;>< v^Ju ^W J^^ttoral features of th^^e 

^ \>,K ^\4^^ sM^' tiW vVtt^i^tsrit^^ cost its framers ^s^ 
^\^S :; Nk^^v ,^v^^ vtx^'XV :jfc«^ 50?? mse^hod of choosing tfcme 
'!*^N>vN V^ • t'^vv ><t^ -'^'^ v>«tjij^ v^iT ;i^ ^^polar vote. The^rJ' 
o*A\ *,>c.<^ -r^iv A'Svvv.-.x/iKv ^ vujacba: in the hands ^:^f 
\\>rx^-\^^^ -"^v -Uv.v^i ^' % ^?vc??^«t wSioise diief duty ^^ 
^^K *^ ^^^- 0.\»^*V3>5^ u ,avviu r^ p^UL of himng hi«^ 
,>^\N^*Nr >v \x.Kv<'x%^ •\i5<>ii;!< :$|^^«iJLbr ch»»efi by tta^^ 
.,^^,a *\ 4W 'N«i%|^N>K\ >*.\iuv\i :u !m)^Q !^?ch diffinihieas^' 



CH.xxvi REFLECTIONS ON FRAME OF GOVERNMENT 397 

result has, however, so completely falsified these expecta- 
tions that it is hard to comprehend how they came to be 
entertained. The presidential electors are mere ciphers, 
who vote, as a matter of course, for the candidate of the 
party which names them; and the President is practi- 
cally chosen by the people at large. The only importance 
which the elaborate machinery provided in the Constitu- 
tion retains, is that it prevents a simple popular vote in 
which the majority of the nation should prevail, and 
makes the issue of the election turn on the voting in 
certain " pivotal " States. 

II. The choice of the President, by what is now 
practically a simultaneous popular vote, not only involves 
once in every four years a tremendous expenditure of 
energy, time, and money, but induces of necessity a 
crisis which, if it happens to coincide with any passion 
powerfully agitating the people, may be dangerous to 
the commonwealth. 

III. There is always a risk that the result of a presi- 
dential election may be doubtful or disputed on the 
ground of error, fraud, or violence. When such a case 
arises, the diflSculty of finding an authority competent to 
deal with it, and likely to be trusted, is extreme. More- 
over, the question may not be settled until the pre-exist- 
ing executive has, by effluxion of time, ceased to have 
a right to the obedience of the citizens. The experience 
of the election of 1876 illustrates these dangers. Such 
a risk of interregna is incidental to all systems, mon- 
archic or republican, which make the executive head 
elective, as witness the Komano-Germanic Empire of the 
Middle Ages, and the Papacy. But it is more serious 
where he is elected by the people than where, as in 
France or Switzerland, he is chosen by the Chambers.^ 

^ In Switzerland the Federal Council of seven are elected by the two 



y^ THE NATIONAL GO 



i 



IV. TJ..: Change of the higi« .:Kimi^ -iffieas, 
afj/1 r/f many of the lower exocacrT^r *Ttfiraa alsOj^ 
which UMually takes place once m ii 
a jerk to the machinery, and csb 
of policy, unleHH, of course, the Presdesc has ^ 
only one term, and is re-elected. 
\% generally a Iohh either of responabiHty or of effin 
eir^ney in the executive chief magistnte dnrmg th*i 
hiMt part of his term. An outgoing Pnywient im^^— v 
poHMibly be; a reckless President, becaii% he has HttL^le 
to loH(; by misconduct, little to hope from good 
duct. He may therefore abuse his patronage, or 
his whims with impunity. But more often he is 
President.^ lie has little influence with 
bccuiUHc his patronage will soon come to an 
iitti<5 hold on the people, who are already 
on th(^ j)olicy of his successor. His secretary of 
cannot trrat boldly with foreign powers, who perceivi 
that ho has a diminished influence in the Senate, an< 
know that the next secretary may have different 

'Pho ubovo considerations suggest the inquiry whetfae^^r 
tho United States^ which no doubt needed a PresideD^Ht 
\\\ 178S> to typify tho then created political unity of thaite 
nut ion. might not now di^^^ense with one. This questio] 
lu>wovor» luu» no\i^r Wn raised in a practical form 




i1\AiuWY9« «in\l th«>i\ tfl^K't oix^" vxf ih<^ir own number to be their Premdeyfct, 
tiiu) thv'wwith aU> lV<M\WiU \^f Ui« CV>aMer«tioii (Constit of 1874, 
(K'^V In ^xuu' l^U4^ \\il\>iik« it Imis Veen prorided that» in case of 
^Wux't' \\r x)«^i^(h \vr uxc(ft)viicil>r \xf tW GoTmnor, the Chief Justice shall 
s^« V^'Yvr^vxTs lu luviiA iW jNttKMr iiii«ml<ier of Ocrancil acts in similar cf 

^ A )^^n^ Uv't^^ v>f iVi»aMsNik> in Uiie Iftst lew months before its iwi- 
l^^^luv^ vU^^!^^9^^«^ ^:MMttv>( |>vywttl» ^ :Slunl^ ahemations of recklessness 
v^^^'^rvX ?ix^iii>^^ <^ l^siwk vSf ^^^^v^'iM^Hru^ l*d* lo powetfdl sections ^ 
s'^*«>^v«^ ^^^ ^^"^ sv'^^ltx^ «xn^ $hr^lMM^ w^c^ dutinks from entering <^ 
AHX W>^* ?».l^^wv s^i' ^\*<^v;>tv xtr ^>f^ m;^ unqKttuit dedsioD. This 



CH.XXVI REFLECTIONS ON FRAME OF GOVERNMENT 399 

America, where the people approve the ofl&ce, though 
dissatisfied with the method of choice.^ 

The strength and worth of the office reside in its 
independence of Congress and direct responsibiUty to the 
people. Americans condemn any plan under which, as 
lately befell in France, the legislature can drive a Presi- 
dent from power and itself proceed to choose a new one. 

V. The Vice-President's office is ill-conceived. His 
only ordinary function is to act as Chairman of the 
Senate, but as he does not appoint the Committees 
of that House, and has not even a vote (except a cast- 
ing vote) in it, this function is of little moment. If, 
however, the President dies, or becomes incapable of 
acting, or is removed from office, the Vice-President 
succeeds to the Presidency. What is the result ? The 
place being in itself unimportant, the choice of a 
candidate for it excites little interest, and is chiefly 
used by the party managers as a means of conciliating 
a section of their party. It becomes what is called " a 
complimentary nomination." The man elected Vice- 
President is therefore never a man in the front rank. 
But when the President dies during his term of office, 
which has happened to four out of the seventeen Presi- 
dents, this second-class man steps into a great place for 
which he was never intended. Sometimes, as in the 
case of Mr. Arthur, he fills the place respectably. Some- 
times, as in that of Andrew Johnson, he throws the 
country into confusion. ^ 

He is ant nullus aut CcBsar. 

1 The question of replacing the President by a ministerial council is 
rarely discussed in America. It has recently been mooted in France. 

2 Mr. James G. Blaine observes that a Vice-President having honour 
but no power is usually the malcontent centre of disappointed and dis- 
contented men, as the heir-presumptive to the throne is apt to be in 
monarchies. — TweTiJty Years in Congress^ vol. iL p. 67. 



400 THE NATIONAL GOVERNMENT parti 

VI. The defects in the structure and working of 
Congress, and in its relations to the executive, have 
been so fully dwelt on already that it is enough to refer 
summarily to them. They are — 

The discontinuity of Congressional policy. 
The want of adequate control over officials. 
The want of opportunities for the executive to in- 
fluence the legislature.^ 
The want of any authority charged to secure the 
passing of such legislation as the coimtry needs. 
The frequency of disputes between three co-ordinate 
powers, the President, the Senate, and the House. 
The maintenance of a continuous policy is a diffi- 
culty in all popular governments. In the United States 
it is specially so, because — 

The executive head and his ministers are neces- 
sarily (unless when a President is re-elected) 
changed once every four years. 
One House of Congress is changed every two years. 
Neither House recognizes permanent leaders. 
No accord need exist between Congress and the 

executive. 
There is (as abeady explained) no such thing as a 
party in power, in the European sense of the term. 
The Americans use it to denote the party to which the 
President belongs. But this party may be in a minority 
in one or both Houses of Congress, in which case it can- 

1 It is remarked by Mr. Horace White (Fortnightly Review, 1879) that 
the quality of the President's cabinet suffers by the exclusion of ministers 
from Congress, because if they had to hold their own and defend their 
master's policy in the House, the President would be driven to select able 
men instead of, as has sometimes happened, his own personal friends. 
This is true ; though Europeans may answer that under the English 
system it sometimes happens that men are placed in great administrative 
office only because they are able speakers, and persons of higher adminis- 
trative gifts passed over because they have not a seat in Parliament or are 
unready in debate. 



CH. XXVI REFLECTIONS ON FRAME OF GOVERNMENT 401 

not do anything which requires fresh legislation, — may 
be in a minority in the Senate, in which case it can take 
no executive act of importance. 

There is no true leadership in political action, because 
the most prominent man has no recognized party- 
authority. Congress was not elected to support him. 
He cannot threaten disobedient followers with a 
dissolution of Parliament like an English prime 
minister. He has not even the French president's 
right of dissolving the House with the consent of the 
Senate. 

There is often no general and continuous cabinet 
policy, because the cabinet has no authority over Con- 
gress, may perhaps have no influence with it. 

There is no general or continuous legislative policy, 
because the legislature, having no recognized leaders, 
and no one guiding committee, acts through a large 
number of committees, independent of one another, 
and seldom able to bring their measures to maturity. 
What continuity exists is due to the general accept- 
ance of a few broad maxims, such as that of non- 
intervention in the afiairs of the Old World, and to 
the fact that a large nation does not frequently or 
lightly change its views upon leading principles. In 
minor matters of legislation and administration there is 
little settled policy. The Houses trifle with questions, 
take them up in one session and drop them the next, 
seem insensible to the duty of completing work once 
begun. It is no one's business to press this duty on them. 

There is no security that Congress will attend to 
such minor defects in the administrative system of 
the country as may need a statute to correct them. 
In Europe the daily experience of the administrative 
departments discloses small faults or omissions in 

VOL. I 2d 



402 THE NATIONAL GOVERNMENT ^ parti 

the law which involve needless trouble to officials, need- 
less cost to the treasury, needless injustice to classes 
of the people. Sometimes for their own sakes, some- 
times from that desire to see things well done which 
is the life-breath of a good public servant, the perma- 
nent officials call the attention of their parliamentary 
chief, the minister, to the defective state of the law, 
and submit to him the draft of a bill to amend it. 
He brings in this bill, and if it involves no matter of 
political controversy (which it rarely does), he gets it 
passed.^ As an American minister does not sit in Con- 
gress, and has no means of getting anything he proposes 
attended to there, it is a mere chance if such amending 
statutes as these are introduced or pass into law. 

These defects are all reducible to two. There is an 
excessive friction in the American system, a waste of 
force in the strife of various bodies and persons created 
to check and balance one another. There is a want 
of executive unity, and therefore a possible want of 
executive vigour. Power is so. much subdivided that 
it is hard at a given moment to concentrate it for 
prompt and effective action. In fact, this happens only 
when a distinct majority of the people are so clearly of one 
mind that the several co-ordinate organs of government 
obey this majority, uniting their efforts to serve its will. 

VII. The relations of the people to the legislature are 
far from perfect. These relations are in every free country 
so much the most refined and delicate, as well as so 
much the most important part of the whole scheme and 
doctrine of government, that we must not expect to find 

1 This remark applies rather to France, Germany, and Italy, than to 
England, because of late years the rules of the English House of Commons 
have enabled a single private member so to retard as usually to defeat 
any measure which the Government does not put forth its full strength 
to carry. 



CH.XXVI REFLECTIONS ON FRAME OF GOVERNMENT 403 

perfection anywhere. But comparing America with 
Great Britain from 1832 to 1885, for it is still too soon 
to judge the condition of things created by the Reform 
Acts of that year, the working of the representative 
system in America seems somewhat inferior. 

There are four essentials to the excellence of a 
representative system :— 

That the representatives shall be chosen from among 
the best men of the country, and, if possible, 
. from its natural leaders. 
That they shall be strictly and palpably responsible 
to their constituents for their speeches and votes. 
That they shall have courage enough to resist a 
momentary impulse of their constituents which 
they think mischievous, i.e. shall be representa- 
tives rather than mere delegates. 
That they individually, and the Chamber they form, 
shall have a reflex action on the people, i.e. 
that while they derive authority from the 
people, they shall also give the people the 
benefit of the experience they acquire in the 
Chamber, as well as of the superior knowledge 
and capacity they may be presumed to possess. 
Americans declare, and no doubt correctly, that of 
these four requisites, the first, third, and fourth are not 
attained in their country. Congressmen are not chosen 
from among the best citizens. They mostly deem 
themselves mere delegates. They do not pretend to 
lead the people, being indeed seldom specially qualified 
to do so. 

But one also learns in America that the second 
requisite, responsibility, is not fully realized. This 
seems surprising in a democratic country, and indeed 
almost inconsistent with that conception of the repre- 



404 THE NATIONAL GOVERNMENT parti 

sentative as a delegate, which is supposed, perhaps erron- 
eously, to be characteristic of democracies. Still the 
fact is there. One cause, on which I have already dwelt, 
is to be found in the committee system. Another 
is the want of organized leadership in Congress. An 
English member's responsibility usually takes the 
form of his being bound to support the leader of his 
party on all important divisions. In America, this 
obligation attaches only when the party has " gone into 
caucus," and there resolved upon its course. Seeing 
that the member need not obey the leader, the leader 
cannot be held responsible for the action of the rank 
and file. As a third cause we may note the fact that 
owing to the restricted competence of Congress many of 
the questions which chiefly interest the voter do not come 
before Congress at all, so that its proceedings are not 
followed with that close and keen attention which the 
debates and divisions of European Chambers excite. 

One may say in general that the reciprocal action and 
reaction between the electors and Congress, what is 
commonly called the " touch " of the people with their 
agents, is not sufficiently close, quick, and delicate. Re- 
presentatives ought to give light and leading to the 
people, just as the people give stimulus and momentum 
to their representatives. This incidental merit of the 
parliamentary system is among its greatest merits. 
But in America the action of the voter fails to tell 
upon Congress. He votes for a candidate of his own 
party, but he does not convey to that candidate an 
impulse towards the carrying of particular measures, 
because the candidate when in Congress will be prac- 
tically unable to promote those measures, unless he 
happens to be placed on the committee to which they 
are referred. Hence the citizen, when he casts his 



CH. XXVI REFLECTIONS ON FRAME OF GOVERNMENT 405 

ballot, can seldom feel that he is advancing any measure 
or policy, except the vague and general policy indi- 
cated in his party platform. He is voting for a party, 
but he does not know what the party will do, and for 
a man, but a man whom chance may deprive of the oppor- 
tunity of advocating the measures he cares most for. 

Conversely, Congress does not guide and illuminate 
its constituents. It is amorphous, and has little in- 
itiative. It does not focus the light of the nation, 
does not warm its imagination, does not dramatize 
principles in the deeds and characters of men.^ This 
happens because, in ordinary times, it lacks great 
leaders, and the most obvious cause why it lacks 
them, is its disconnection from the executive. As 
it is often devoid of such men, so neither does the 
country habitually come to it to look for them. In 
the old days, neither Hamilton, nor Jefferson, nor John 
Adams, in our own time, neither Stanton, nor Grant, 
nor Tilden, nor Cleveland, ever sat in Congress. 
Lincoln sat for two years only, and owed little of his 
subsequent eminence to his career there. 

VIII. The independence of the judiciar}^ due to 
its holding for life, has been a conspicuous merit of 
the Federal system, as compared with the popular 
election and short terms of judges in most of the States. 
Yet even the Federal judiciary is not secure from the 
attacks of the two other powers, if combined. For 
the legislature may by statute increase the number of 

^ As an iUustration of the want of the dramatic element in Con- 
gress, I may mention that some at least of the parliamentary debating 
societies in the American colleges (colleges for women included) take for 
their model not either House of Congress but the British House of 
Commons, the students conducting their debates under the names of 
prominent members of that assembly. They say that they do this 
because Congress has no Ministry and no leaders of the Opposition. 



4o6 77^.5: NA TIONAL GO VERNMENT part i 

Federal justices, increase it to any extent, since the 
Constitution leaves the number undetermined, and the 
President may appoint persons whom he knows to be 
actuated by a particular political bias, perhaps even 
prepared to decide specific questions in a particular 
sense. Thus he and Congress together may, if not 
afraid of popular displeasure, obtain such a judicial 
determination of any constitutional question as they join 
in desiring, even although that question has been hereto- 
fore difierently decided by the Supreme court. The 
only safeguard is in the disapproval of the people. 

It is worth remarking that the points in which the 
American frame of national government has proved least 
successful are those which are most distinctly artificial, 
i.e. those which are not the natural outgrowth of old 
institutions and well-formed habits, but devices con- 
sciously introduced to attain specific ends.^ The elec- 
tion of the President and Vice-President by electors 
appointed ad hoc is such a device. The functions of 
the judiciq,ry do not belong to this category ; they are 
the natural outgrowth of conmion law doctrines and 
of the previous history of the colonies and States ; all 

^ See Chapter IV. a7if«, and Note thereto, in which it is shown that 
most of the provisions of the Federal Constitution which have worked 
weU were drawn from the Constitutions of the several States. 

This may seem to be another way of saying that nature, i.«. hiB- 
torical development, is wiser than the wisest men. Tet it must be 
remembered that what we caU historical development is really the result 
of a great many smaU expedients invented by men during many genera- 
tions for curing the particular evils in their government which &om time 
to time had to be cured. The moral therefore is that a succession of 
small improvements, each made conformably to existing conditions and 
habits, is more likely to succeed than a large scheme, made aU at once in 
what may be called the spirit of conscious experiment. The Federal Con- 
stitution has been generally supposed in Europe to have been such a 
scheme, and its success has encouraged other countries to attempt similar 
bold and large experiments. This is an error. The Constitution of the 
United States is almost as truly the matured result of long and gradual 
historical development as the English Constitution itself. 



CH.XXVI REFLECTIONS ON FRAME OF GOVERNMENT 407 

that is novel in them, for it can hardly be called 
artificial, is the creation of Courts co-extensive with 
the sphere of the national government. 

All the main features of American government may 
be deduced from two principles. One is the sovereignty 
of the people, which expresses itself in the fact that the 
supreme law — the Constitution — is the direct utterance 
of their will, that they alone can amend it, that it pre- 
vails against every other law, that whatever powers it 
does not delegate are deemed to be reserved to it, that 
every power in the State draws its authority, whether 
directly, like the House of Representatives, or in the 
second degree, like the President and the Senate, or in 
the third degree, like the Fed^eral judiciary, from the 
people, and is legally responsible to the people, and not 
to any one of the other powers. 

The second principle, itself a consequence of this 
first one, is the distrust of the various organs and 
agents of government. The States are carefully safe- 
guarded against aggression by the central government. 
So are the individual citizens. Each organ of govern- 
ment, the executive, the legislature, the judiciary, is made 
a jealous observer and restrainer of the others. Since the 
people, being too numerous, cannot directly manage their 
affairs, but must commit them to agents, they have re- 
solved to prevent abuses by trusting each agent as little 
as possible, and subjecting him to the oversight of other 
agents, who will harass and check him if he attempts to 
overstep his instructions. 

Some one has said that the American Government 
and Constitution are based on the theology of Calvin 
and the philosophy of Hobbes. This at least is true, 
that there is a hearty Puritanism in the view of human 
nature which pervades the instrument of 1787. It is 



4o8 THE NATIONAL GOVERNMENT parti 

the work of men who believed in original sin, and were 
resolved to leave open for transgressors no door which 
they could possibly shut.^ Compare this spirit with the 
enthusiastic optimism of the Frenchmen of 1789. It is 
not merely a difference of race temperaments ; it is a 
difference of fundamental ideas. 

With the spirit of Puritanism there is blent a double 
portion of the spirit of legalism. Not only is there 
no reliance on ethical forces to help the government to 
work : there is an elaborate machinery of law to pre- 
serve the equilibrium of each of its organs. The aim 
of the Constitution seems to be not so much to attain 
great common ends by securing a good government as 
to avert the evils which will flow, not merely from 
a bad government, but from any government strong 
enough to threaten the pre-existing communities or 
the individual citizen. 

The spirit of 1787 was an English spirit, and there- 
fore a conservative spirit, tinged, no doubt, by the 
hatred to tyranny developed in the revolutionary 
struggle, tinged also by the nascent dislike to in- 
equality, but in the main an English spirit, which 
desired to walk in the old paths of precedent, which 
thought of government as a means of maintaining 
order and securing to every one his rights, rather 
than as a great ideal power, capable of guiding and 
developing a nation's life. And thus, though the 
Constitution of 1789 represented a great advance on 
the still oligarchic system of contemporary England, it 
was yet, if we regard simply its legal provisions, the least 
democratic of democracies. Had the points which it 
left undetermined been dealt with in an aristocratic 

1 " That power might be abused," says MarshaU in his Lift of fVath- 
ington, " was deemed a conclusive reason why it should not be conferred." 



CH. XXVI REFLECTIONS ON FRAME OF GO VERNMENT 409 

spirit, had the legislation of Congress and of the several 
States taken an aristocratic turn, it might have grow© 
into an aristocratic system.^ The democratic character 
which it now possesses is largely the result of subsequent 
events, which have changed the conditions under which 
it had to work, and have delivered its development into 
the hands of that passion for equality which has become 
a powerful factor in the modern world everywhere. 

He who should desire to draw an indictment against 
the American scheme of government might make it a 
long one, and might for every count in it cite high 
American authority and adduce evidence from American 
history. Yet a European reader would greatly err were 
he to conclude that this scheme of government is a 
failure, or is, indeed, for the purposes of the country, 
inferior to the political system of any of the great nations . 
of the Old World. 

All governments are faulty ; and an equally minute [ 
analysis of the constitutions of England, or France, 
or Germany would disclose mischiefs as serious, rela- 
tively to the problems with which those states have to 

deal, as those we have noted in the American system. / 

To any one familiar with the practical working of free "1 
governments it is a standing wonder that they work at I 
all. The first impulse of mankind is to follow and 
obey ; servitude rather than freedom is their natural 
state. With freedom, when it emerges among the more 
progressive races, there come dissension and faction ; and 
it takes many centuries to form those habits of compro- \ 
mise, that love of order, and that respect for public^ 
opinion which make democracy tolerable. What keeps 

1 The point most vital for determining the character of Congress, viz. 
the qualification of the electors, was left to the States. They have deter- 
mined it by establishing manhood suffrage. 



r 



410 THE NATIONAL GOVERNMENT parti 

a free government going is the good sense and patriot- 
ism of the people, or of the guiding class, embodied in 
usages and traditions which it is hard to describe, but 
which find, in moments of difficulty, remedies for the in- 
evitable faults of the system. Now, this good sense and 
that power of subordinating sectional to national in- 
terests which we call patriotism, exist in higher measure 
in America than in any of the great states of Europe. 
And the United States, more than any other country, 
are governed by public opinion, that is to say, by the 
general sentiment of the mass of the nation, which all 
the organs of the national government and of the State 
governments look to and obey.^ 

A philosopher from Jupiter or Saturn who should 
examine the constitution of England or that of America 
would probably pronounce that such a body of com- 
plicated devices, full of opportunities for conffict and 
deadlock, could not work at all. Many of those who 
examined the American constitution when it was 
launched did point to a multitude of difficulties, and 
confidently predicted its failure. Still more confidently 
did the European enemies of fi'ee government declare in 
the crisis of the War of Secession that ** the republican 
bubble had burst." Some of these censures . were well 
grounded, though there were also defects which had 
escaped criticism, and were first disclosed by experience. 
But the Constitution has lived on in spite of all defects, 
and seems stronger now than at any previous epoch. 

Every Constitution, like every man, has "the de- 
fects of its good qualities." If a nation desires perfect 
stability it must put up with a certain slowness and 
cumbrousness ; it must face the possibility of a want of 

^ The nature of public opinion and the way in which it governs are 
discussed in Part IV. 



CH. XXVI REFLECTIONS ON FRAME OF GOVERNMENT 411 

action where action is called for. If, on the other hand, 
it seeks to obtain executive speed and vigour by a com- 
plete concentration of power, it must run the risk that 
power will be abused and irrevocable steps too hastily 
taken. Those faults on which I have laid stress, the 
waste of power by friction, the want of unity and vigour 
in the conduct of affairs by executive and legislature, are 
the price which the Americans pay for the autonomy of 
their States, and for the permanence of the equiUbrium 
among the various branches of their government They 
pay this price willingly, because these defects are far 
less dangerous to the body politic than they would 
be in a European country. Take for instance the 
shortcomings of Congress as a legislative authority. 
Every European country is surrounded by difficulties 
which legislation must deal with, and that promptly. 
But in America, where those relics of mediaeval privi- 
lege and injustice that still cumber most parts of 
the Old World either never existed, or wiere long ago 
abolished, where aU the conditions of material pros- 
perity exist in ample measure, and the development 
of material resources occupies men's minds, where nearly 
all social reforms lie within the sphere of State action, 
— in America there is less need and less desire than 
in Europe for a perennial stream of federal legisla- 
tion. People are contented if things go on fairly 
well as they are. Political philosophers, or philan- 
thropists, perceive some improvements which federal 
statutes might effect, but tha mass of the nation does 
not complain. The barrenness of session after session 
is no such crying evil as the less conspicuous barren- 
ness deplored by reformers in England. 

*'In matters of government," says Judge Cooley,^ 

^ Address to the South Carolina Bar Association, Dec. 1886. 




412 THE NATIONAL GOVERNMENT parti 

" America has become the leader and the example for 
all enlightened nations. England and France alike 
look across the ocean for lessons which may form and 
guide their people. Italy and Spain follow more dis- 
tantly ; and the liberty-loving people of every country 
take courage from American freedom, and find augury 
of better days for themselves from American prosperity. 
But America is not so much an example in her liberty 
as in the covenanted and enduring securities which are 
intended to prevent liberty degenerating into licence, 
and to establish a feeling of trust and repose under a 
beneficent government, whose excellence, so obvious in 
its freedom, is still more conspicuous in its careful pro- 
vision for permanence and stabiUty." 

Every European state has to fear not only the 
rivalry but the aggression of its neighbours. Even 
Britain, so long safe in her insular home, has lost some of 
her security by the growth of steam navies, and has in her 
Indian and colonial possessions given pledges to Fortune 
all over the globe. She, like the Powers of the European 
Continent, must maintain her system of government in 
full efficiency for war as well as for peace, and cannot 
afibrd to let her armaments decline, her finances become 
disordered, the vigour of her executive authority be 
impaired, sources of internal discord contiuue to prey 
upon her vitals. But America lives in a world of her 
own, i'psa suis pollens opibics, nihil indiga nostri. Safe 
from attack, safe even from menace, she hears from 
afar the warring cries of European races and faiths, as 
the gods of Epicurus listened to the murmurs of the 
unhappy earth spread out beneath their golden dwellings, 

"Sejuncta a rebus nostris semotaque longe." 

Had Canada or Mexico grown to be a great power, 



CH. XXVI REFLECTIONS ON FRAME OF GOVERNMENT 413 

had France not sold Louisiana^ or had England, rooted 
on the American continent, become a military despotism, 
the United States could not indulge the easy optimism 
which makes them tolerate the faults of their government. 
As it is, that which might prove to a European state a 
mortal disease is here nothing worse than a teasing ail- 
■neot. Since theWarofSeceJon ended. noseriousdLger 
has arisen either from within or from without to alarm 
transatlantic statesmen. Social convulsions from within, 
warlike assaults from without, seem now as unlikely to 
try the fabric of the American Constitution, as an earth- "7 
quake to rend the walls of the Capitol. This is why ( 
the Americans submit, not merely patiently but hope- 
fully, to the defects of their government. The vessel 
may not be any better built, or found, or rigged than are 
those which carry the fortunes of the great nations of 
Europe. She is certainly not better navigated. But 
for the present at least — it may not always be so^she A 
sails upon a summet sea. J 

It must never be forgotten that the main object | 
which the framers of the Constitution set before them- 
selves has been achieved. When Si^yes was asked what 
he had done during the Keign of Terror, he answered, 
*' I lived." The Constitution as a whole has stood and 
stands unshaken. The scales of power have continued to 
hang fairly even. The President has not corrupted and 
enslaved Congress : Congress has not paralysed and 
cowed the President. The legislative may have gained 
somewhat on the executive department; yet were 
George Washington to return to earth, he might be as 
great and useful a President as he was a century ago. 
Neither the legislature nor the executive has for a 
moment threatened the liberties of the people. The ; 
States have not broken up the Union, and' the Union / 



414 THE NATIONAL GOVERNMENT parti 

has not absorbed the States. No wonder that the 
Americans are proud of an instrument under which this 
great result has been attained, which has passed un- 
scathed through the furnace of civU wax. which has been 
found capable of embracing a body of commonwealths 
three times as numerous, and with twenty -fold the 
population of the original States, which has cultivated 
the political intelligence of the masses to a point reached 
in no other country, which has fostered and been found 
compatible with a larger measure of local self-govern- 
ment than has existed elsewhere. Nor is it the least 
of its merits to have made itself beloved. Objections 
may be taken to particular features, and these objec- 
tions point, as most American thinkers are agreed, to 
practicable improvements which would preserve the 
jexcellences and remove some of the inconveniences. 
I But reverence for the Constitution has become so potent 
' a conservative influence, that no proposal of fundamental 
change seems likely to be entertained. And this 
reverence is itself one of the most wholesome and hope- 
[ful elements in the character of the American people. 



CHAPTEK XXVII 



THE FEDERAL SYSTEM 



Having examined the several branches of the 
National government and the manner in which they 
work together, we may now proceed to examine the 
American Commonwealth as a Federation of States. 
The present chapter is intended to state concisely the 
main features which distinguish the Federal system, 
and from which it derives its peculiar character. Three 
other chapters wiU describe its practical working, and 
.ummarize'th. criticUm, that may I. pa^d «pon'i.. 

The contests in the Convention of 1787 over the 
framing of the Constitution, and in the country over its 
adoption, turned upon two points : the extent to which 
the several States should be recognized as independent 
and separate factors in the construction of the National 
government, and the quantity and nature of the powers 
which should be withdrawn from the States to be 
vested in that government. It has been well remarked 
that ''the first of these, the definition of the structural 
powers, gave more trouble at the time than the second, 
because the line of partition between the powers of the 
States and the Federal government had been already 
fixed by the whole experience of tjie country."^ But 

^ I quote from an acute and concise essay on this subject by Mr. 



^f 



416 THE NATIONAL GOVERNMENT parti 

since 1791 there has been practically no dispute as to 
the former point, and little as to the propriety of the 
provisions which define the latter. On the interpre- 
tation of these provisions there has, of course, been 
endless debate, some deeming the Constitution to have 
taken more from the States, some less; while still 
warmer controversies have raged as to the matters 
which the instrument does not expressly deal with, 
and particularly whether the States retain their sove- 
reignty,' and with it the right of nullifying or refusing 
to be bound by certain acts of the national government, 
and in the last resort of withdrawing from the Union. 
As these latter questions (nullification and secession) 
have now been settled by the Civil War, we may say 
that in the America of to-day there exists a general 
agreement — 

That every State on entering the Union finally re- 
nounced its sovereignty, and is now for ever subject to 
the Federal authority as defined by the Constitution. 

That the functions of the States as factors of the 
national government are satisfactory, i.e. sufficiently 
secure its strength and the dignity of these communities. 

That the delimitation of powers between the national 
government and the States, contained in the Constitu- 
tion, is convenient, and needs no fundamental alteration.^ 

The ground which we have to tread during the re- 
mainder of this chapter is therefore no longer controversial 
ground, but that of well-established law and practice.^ 

Richard M. Venable of Baltimore, entitled "The Partition of Powers 
between the Federal and State Governments," being a paper read at the 
1885 meeting of the American Bar Association. 

^ The view that the power of Congress to legislate might properly be 
extended, by a constitutional amendment, to such a subject as marriage 
and divorce, is of course compatible with an acquiescence in the general 
scheme of delimitation of powers. 

2 A remarkably clear view of the limits of Federal and State authority 



CHAP. XXVII THE FEDERAL SYSTEM 417 

I. The distribution of powers between the National 
and ^ the State governments is effected in two ways, 
Positively, by conferring certain powers on the National 
government. Negatively, by imposing certain restric- 
tions on the States. It would have been superfluous 
to confer any powers on the States, because they 
retain all powers not actually taken from them. A 
lawyer may think that it was equally unnecessary 
and, so to speak, inartistic, to lay any prohibitions on 
the National government, because it could ex hypothesi 
exercise no powers not expressly granted. However, 
the anxiety of the States to fetter the master they were 
giving themselves caused the introduction of provisions 
qualifying the grant of express powers, and interdicting 
the National government from various kinds of action 
on which it might otherwise have been tempted to 
enter.^ The matter is further complicated by the fact 
that the grant of power to the National government is 
not in all cases an exclusive grant : i.e. there are matters 
which both, or either, the States and the National 
government may deal with. "The mere grant of a 
power to Congress does not of itself, in most cases, 
imply a prohibition upon the States to exercise the like 
power. ... It is not the mere existence of the National 

may be found in the treatise of Mr. C. S. Patterson (published since this 
chapter was written), Federal Restraints on State Action : Philadelphia, 1888. 
1 Judge Cooley observes to me, " The prohibitions imposed by the 
Federal Constitution on the exercise of power by the general government 
were not, for the most part, to prevent its encroaching on the powers left 
with the States, but to preclude tyrannical exercise of powers which were 
unquestionably given to the Federal government. Thus Congress was 
forbidden to pass any biU of attainder ; this was to prevent its dealing 
with Federal offences by legislative conviction and sentence. It was for- 
bidden to pass ex post facto laws, and this . undoubtedly is a limitation 
upon power granted ; for with the same complete power in respect to 
offences against the general government which a sovereignty possesses, it 
might have passed such laws if not prohibited." 

VOL. I 2 E 



4i8 THE NATIONAL GOVERNMENT parti 

power but its exercise which is incompatible with the 
exercise of the same power by the States."^ Thus we 
may distinguish the following classes of governmental 
powers : — 

Powers vested in the National government alone. 

Powers vested in the States alone. 

Powers exercisable by either the National govern- 
ment or the States. 

Powers forbidden to the National government. 

Powers forbidden to the State governments. 

It might be thought that the two latter classes are 
superfluous, because whatever is forbidden to the National 
government is permitted to the States, and conversely, 
whatever is forbidden to the States is permitted to the 
National government. But this is not so. For instance, 
Congress can grant no title of nobility (Art. i. § 9). 
But neither can a State do so (Art. i. § 10). The 
National government cannot take private property for 
public use without just compensation (Amendment v.) 
Apparently neither can any State do so (Amendment 
xiv. as interpreted in several cases). So no State can 
pass any law impairing the obligation of a contract 
(Art. i. § 10). But the National government, although 
not subject to a similar direct prohibition, has received 
no general power to legislate as regards ordinary con- 
tracts, and might therefore in some cases find itself 
equally unable to pass a law which a State legislature, 
though for a different reason, could not pass.^ So no 
State can pass any ex post facto law. Neither can 
Congress. 

^ Cooley, Principles f p. 35 ; cf. Sturges v. Crovminshieldy 4 Wheat. 
122. 

^ Of course Congress can legislate regarding some contracts, and can 
impair their obligation. It has power to regulate commerce, it can pass 
bankrupt laws, it can make paper money legal tender. 



CHAP. XXVII THE FEDERAL SYSTEM 419 

What the Constitution has done — and this is to 
Englishmen one of its most singular features — is not to 
cut in half the totality of governmental functions and 
powers, giving paxt to the national government and 
leaving all the rest to the States, but to divide up this 
totality of authority into a number of parts which do 
not exhaust the whole, but leave a residuum of powers 
neither granted to the Union nor continued to the States 
but reserved to the people, who, however, can put them 
in force only by the diflScult process of amending the 
Constitution. In other words, there are things in 
America which there exists no organized and per- 
manent authority capable of legally doing, not a State, 
because it is expressly forbidden, not the national gov- 
ernment, because it either has not received the com- 
petence or has been expressly forbidden. Suppose, 
for instance, that there should arise a wish to pass 
for California such a measure 83 the Irish Land Act 
passed by the British Parliament in 1881, or the Irish 
Land Act passed by that body in 1887. Neither 
the State legislature of California, nor the people 
of California assembled in a constitutional convention, 
could pass such a measure, because it would violate 
the obligation of contracts, and thereby transgress 
Art. i. § 10 of the Federal Constitution. Whether 
the Federal Congress could pass such a measure is at 
least extremely doubtful, because the Constitution, 
though it has imposed no prohibition such as that 
which restricts a State, does not seem to have conferred 
on Congress the right of legislating on such a matter at 
all.^ If, therefore, an absolute and overwhelming neces- 

1 It may of course be suggested that in case of urgent public neces- 
sity, such as the existence of war or insurrection, Congress might extinguish 
debts either generally or in a particular district No such legislative power 



420 THE NATIONAL GOVERNMENT part i 

sity for the enactment of such a measure should arise, 
the safer if not the only course would be to amend the 
Federal Constitution, either by striking out the prohibi- 
tion on the States or by conferring the requisite power 
on Congress, a process which would probably occupy 
more than a year, and which requires the concurrence 
of two-thirds of both Houses of Congress and of three- 
fourths of the thirty-eight States. 

II. The powers vested in the National government 
alone are such as relate to the conduct of the foreign 
relations of the country and to such common national 
purposes as the army and navy, internal commerce, 
currency, weights and measures, and the post-oflSce, 
with provisions for the management of the machinery, 
legislative executive and judicial, charged with these 
purposes.^ . 

The powers which remain vested in the States alone 
are all the other ordinary powers of internal government, 
such as legislation on private law, civil and criminal, 
the maintenance of law and order, the creation of local 
institutions, the provision for education and the relief 
of the poor, together with taxation for the above pur- 
poses. 

III. The powers which are exercisable concurrently 
by the National government and by the States are — 

Powers of legislation on some specified subjects, 
such as bankruptcy and certain commercial matters 
[e.g. pilot laws and harbour regulations), but so that 
State legislation shall take effect only in the absence of 
Federal legislation. 

seems, however, to have been exerted or declared by the courts to exist, 
unless the principles of the last Legal Tender decision can be thought to 
reach so far. 

1 See Art. L § 8, Art. ii. § 2, Art. iii. § 2, Art. iv. g 3 and 4 ; Amend- 
ments xiii., xiv., xv. of the Constitution. 



CHAP, xxvii THE FEDERAL SYSTEM 421 

Powers of taxation, direct or indirect, but so 
that neither Congress nor a State shall tax exports 
from any State, and so that neither any State shall, 
except with the consent of Congress, tax any cor- 
poration or other agency created for Federal purposes 
or any act done under Federal authority, nor the 
National government tax any State or its agencies or 
property. 

Judicial powers in certain classes of cases where 
Congress might have legislated, but has not, or where 
a party to a suit has a choice to proceed either in a 
Federal or a State court. 

Powers of determining matters relating to the elec- 
tion of representatives and senators (but if Congress 
determines, the State law gives way). 

IV. The prohibitions imposed on the National 
government are set forth in Art. i. § 9, and in the first 
ten amendments. The most important are — 

Writ of habeas corpus may not be suspended, nor 
bill of attainder or ex post facto law passed.^ 

No commercial preference shall be given to one State 
over another. 

No title of nobility shall be granted. 

No law shall be passed establishing or prohibiting 
any religion, or abridging the' freedom of speech or of 
the press, or of public meeting, or of bearing arms. 

No religious test shall be required as a qualification 
for any office under the United States. 

No person shall be tried for a capital crime unless 
on the presentment of a grand jury, or be subjected to a 
second capital trial for the same offence, or be compelled 

^ Limitations of a nature generally similar to these are now pretty 
frequent in recent European Constitutions, e,g. in that of Belgium. 
The term ex poit facto law is deemed to refer to criminal laws only. 



422 THE NATIONAL GOVERNMENT parti 

to be a witness against himself, or be tried otherwise 
than by a jury of his State and district. 

No common law action shall be decided except by a 
jury where the value in dispute exceeds $20, and no 
fact determined by a jury shall be re-examined other- 
wise than by the rules of the common law.^ 

V. The prohibitions imposed on the States are con- 
tained in Art. i. § 10, and in the three last amendments. 
They are intended to secure the National government 
against attempts by the States to trespass on its domain, 
and to protect individuals against oppressive legisla- 
tion. 

No State shall make any treaty or alliance : coin 
money : make anything but gold and silver coin a legal 
tender : pass any bill of attainder, ex post facto law, or 
law impairing the obligation of contracts: grant any 
titles of nobility. 

No State shall without the consent of Congress — 
Lay duties on exports or imports (the produce of such, 
if laid, going to the national treasury) : keep troops or 
ships of war in peace time : enter into an agreement 
with another State or with any foreign power : engage 
in war, unless actually invaded or in imminent danger. 

Every State must — Give credit to the records and 
judicial proceedings of every other State : extend the 
privileges and immunities of citizens to the citizens of 
other States: deliver up fugitives from justice to the 
State entitled to claim them. 

No State shall have any but a republican form of 
government. 

No State shall maintain slavery : abridge the privi- 
leges of any citizen of the United States, or deny to 

1 Chiefly intended to prevent the methods of courts of equity from 
being applied in the Federal courts as against the findings of a jury. 



CHAP. XXVII THE FEDERAL S YSTEM 423 

him the right of voting, in respect of race, colour, or 
previous servitude : deprive any person of life, liberty, 
or property without due process of law : deny to any 
person the equal protection of the laws. 

Note that this list contains no prohibition to a 
State to do any of the following things : — Establish a 
particular form of religion : endow a particular form of 
religion, or educational or charitable establishments con- 
nected therewith : abolish trial by jury in criminal or 
civil cases : suppress the freedom of speaking, writing, 
and meeting (provided that this be done equally as 
between different classes of citizens, and provided also 
that it be not done to such an extent as to amount to 
a deprivation of liberty without due process of law): 
limit the electoral franchise to any extent : extend 
the electoral franchise to women, minors, aliens. 

These omissions are significant. They show that the | 
framers of the Constitution had no wish to produce uni- 
formity among the States in government or institutions, ', 
and little care to protect the citizens against abuses i 
of State power. ^ Their chief aim was to secure the 
National government against encroachments on the part 
of the States, and to prevent causes of quarrel both 
between the central and State authorities and between ) 
the several States. The result has, on the whole, justified 
their action. So far from abusing their power of making ' 
themselves unlike one another, the States have tended 
to be too uniform, and have made fewer experiments in 
institutions than one could wish. 

VI. The powers vested in each State are all of them 

1 The fourteenth and fifteenth amendments are in this respect a 
novelty. The only restrictions of this kind to be found in the instrument 
of 1789 are those relating to contracts and ex post facto laws. Of course 
the rights of State citizens were adequately protected already by the pro- 
visions of State constitutions. 



424 THE NA TIONAL GO VERNMENT part i 

original and inherent powers, which belonged to the 
State before it entered the Union. ^ Hence they are 
priTYia facie unlimited, and if a question arises as to any- 
particular power, it is presumed to be enjoyed by the 
State, unless it can be shown to have been taken away 
by the Federal Constitution ; or, in other words, a State 
is not deemed to be subject to any restriction which the 
Constitution has not distinctly imposed. 

The powers granted to the National government are 
delegated powers, enumerated in and defined by the 
instrument which has created the Union. Hence the 
rule that when a question arises whether the national 
government possesses a particular power, proof must be 
given that the power was positively granted. If not 
granted, it is not possessed, because the Union is an 
artificial creation, whose government cau have nothing 
but what the people have by the Constitution conferred. 
The presumption is therefore against the national 
government in such a case, just as it is for the State 
in a like case.^ 

Vn. The authority of the National government over 
the citizens of every State is direct and immediate, not 
exerted through the State organization, and not requir- 
ing the co-operation of the State government. For most 
purposes the National government ignores the States ; 

^ When I speak of a State, I do not mean merely a State legislature, 
because that body is usually restrained by the State constitution from 
exercising the totality of the powers which the State possesses, but include 
the people of the State assembled in convention, or voting on a State 
constitution or on an amendment proposed thereto. 

2 Congress must not attempt to interfere with the so-called " police 
power" of the States within their own limits. So when a statute 
of Congress had made it punishable to sell certain illuminating fluids 
inflammable at less than a certain specified temperature, it was held that 
this statute could not operate within a State, but only in the District of 
Columbia and the Territories, and a person convicted under it in Detroit 
was discharged {United States v. De WUty 9 WalL 41). 



CHAP.xxvii THE FEDERAL SYSTEM 425 

and it treats the citizens of different States as being 
simply its own citizens, equally bound by its laws. 
The Federal courts, revenue officers, and post-office 
draw no help from any State officials, but depend 
directly on Washington. Hence, too, of course, there 
is no local self-government in Federal matters. No 
Federal official is elected by the people of any local area. 
Local government is purely a State affair. 

On the other hand, the State in no wise depends on 
the National government for its organization or its effec- 
tive working. It is the creation of its own inhabitants. 
They have given it its constitution. They administer its 
government. It goes on its own way, touching the 
national government at but few points. That the two 
should touch at the fewest possible points was the intent 
of those who framed the Federal Constitution, for they 
saw that the less contact, the less danger of collision. 
Their aim was to keep the two mechanisms aa distinct 
and independent of each other as was compatible with 
the still higher need of subordinating, for national pur- 
poses-, the State to the Central government.^ 

VIII. It is A further consequence of this principle 
that the National government has but little to do with the 
States as States. Its relations are with their citizens, 
who are also its citizens, rather than with them as ruling 
commonwealths. In the following points, however, the 
Constitution does require certain services of the States : — 

It requires each State government to direct the 
choice of, and accredit to the seat of the national 
government, two senators and so many representatives 
as the State is entitled to send. 

^ For a comparison of the Federal system of the United States 
with the Federal system of the two ancient English Universities, see note 
to this chapter printed at the end of the volume. 



426 THE NATIONAL GOVERNMENT parti 

It requires similarly that presidential electors be 
chosen meet and vote in the States, and that their 
votes be transmitted to the national capital. 

It requires each State to organize and arm its militia, 
which, when duly summoned for active service, are 
placed under the command of the President. 

It requires each State to maintain a republican form 
of government.^ 

Note in particular that the National government 
does not, as in some other federations — 

Call upon the States, as commonwealths, to con- 
tribute funds to its support : 

Issue (save in so far as may be needed in order to 
secure a republican form of government) administrative 
orders to the States, directing their authorities to cany 
out its laws or commands : 

Eequire the States to submit their laws to it, and 
veto such as it disapproves. 

The first two things it is not necessary for the 
National government to do, because it levies its talxes 
directly by its own collectors, and enforces its laws, 
commands, and judicial decrees by the hands of its own 
servants. The last can be dispensed with because the 
State laws are i'pso jure invalid, if they conflict with the 
Constitution or any treaty or law duly made under it 
(Art. vi. § 2), while if they do not so conflict they 
are valid whether the National government should 
approve of them or not. 

Neither does the National government allow its 
structure to be dependent on the action of the States. 
" To make it impossible for a State or group of States to 
jeopard by inaction or hostile action the existence of the 

1 Conversely, the National government may be required by any State 
to afford protection against invasion and against domestic violence. 



CHAP. XXVII THE FEDERAL SYSTEM 427 

central government," ^ was a prime object with the men 
of 1787, and has greatly contributed to the solidity of 
the fabric they reared. The de facto secession of eleven 
States in 1860-61 interfered with the regular legal con- 
duct neither of the presidential election of 1864 nor of 
the congressional elections from 1861 to 1865. Those 
States were not represented in Congress ; but Congress 
itself went on diminished in numbers yet with its full 
legal powers, as the British Parliament would go on 
though all the peers and representatives from Scotland 
might be absent. 

IX. A State is, within its proper sphere, just as legally 
supreme, just as well entitled to give eflfect to its own 
will, as is the National government within its sphere ; 
and for the same reason. All authority flows from the 
people. The people have given part of their supreme 
authority to the Central, part to the State governments. 
Both hold by the same title, and therefore the National 
government, although superior wherever there is a con- 
currence of powers, has no more right to trespass upon 
the domain of a State than a State has upon the domain 
of Federal action. "When a particular power," says 
Judge Cooley, "is found to belong to the States, they 
are entitled to the same complete independence in its 
exercise as is the National government in wielding its 
own authority." That the course which a State is 
following is pernicious, that its motives are bad and its 
sentiments disloyal to the Union, makes no difference 
until or unless it infringes on the sphere of Federal 
authority. It may be thought that however distinctly 
this may have been laid down as a matter of theory, in 
practice the State will not obtain the same justice as the 
National government, because the court which decides 

^ Venable, vi supra. 



v» 



428 THE NATIONAL GOVERNMENT parti 

points of law in dispute between the two is in the last 
resort a Federal court, and therefore biassed in favour of 
the Federal government. In practice, however, little or 
no unfairness has arisen from this cause. ^ The Supreme 
court may, as happened for twenty years before the 
War of Secession, be chiefly composed of States' Rights 
men. In any case the court cannot stray far from the 
path which previous decisions have marked out. 

X. There are several remarkable omissions in the 
constitution of the American federation. 

One is that there is no grant of power to the 
National government to coerce a recalcitrant or rebellious 
State. Another is that nothing is said as to the right 
of secession. Any one can understand why this right 
should not have been granted. But neither is it men- 
tioned to be negatived. 

There is no abstract or theoretic declaration regard- 
ing the nature of the federation and its government, 
nothing as to the ultimate supremacy of the central 
authority outside the particular sphere allotted to it, 
nothing as to the so-called sovereign rights of the States. 
As if with a prescience of the dangers to follow, the wise 
men of 1787 resolved to give no opening for abstract 
inquiry and metaphysical dialectic. But in vain. The 
human mind is not to be so restrained. If the New 
Testament had consisted of no other writings than the 
Gospel of St. Matthew and the Epistle of St. James, 
there would have been scarcely the less a crop of specu- 

1 ** Whatever fluctuations may be seen in the history of public opinion 
during the period of our national existence, we think it will be found 
that the Supreme court, so far as its functions required, has always held 
with a steady and even hand the balance between State and Federal 
power, and we trust that such may continue to be the history of its 
relation to that subject so long as it shall have duties to perform which 
demand of it a construction of the Constitution." — Judgment of the 
Supreme court in Tht Slaughter House CaseSf 16 WalL 82. 



CHAP. XXVII THE FEDERAL SYSTEM 429 

lative theology. The drily legal and practical character 
of the Constitution did not prevent the growth of a mass 
of subtle and, so to speak, scholastic metaphysics regard- 
ing the nature of the government it created. The inex- 
tricable knots which American lawyers and publicists 
went on tying, down till 1861, were cut by the sword 
of the North in the Civil War, and need concern us 
no longer. It is now admitted that the Union is not 
a mere compact between commonwealths, dissoluble 
at pleasure, but an instrument of perpetual efficacy,^ 

1 This view received judicial sanction in the famous case of Textis v. 
TVTvUe (7 WaU. 700) decided by the Supreme court after the war. It is 
there said by Chief- Justice Chase, " The Union of the States never was a 
purely artificial and arbitrary relation. ... It received definite form and 
character and sanction by the Articles of Confederation. By these the 
Union was solemnly declared to be * perpetual.' And where these articles 
were found to be inadequate to the exigencies of the country, the Constitu- 
tion was ordained * to form a more perfect Union.* It is difficult to convey 
the idea of indissoluble unity more clearly than by these words. What 
can be indissoluble if a perpetual union, made more perfect, is not ? But 
the perpetuity and indissolubility of the Union by no means implies the 
loss of distinct and individual existence, or of the right of self-government, 
by the States. ... It may be not unreasonably said that the preservation 
of the States and the maintenance of their governments are as much within 
the design and care of the Constitution as the preservation of the Union 
and the maintenance of the national government The Constitution, in aU 
its provisions, looks to an indestructible Union composed of indestructible 
States. When, therefore, Texas became one of the United States she 
entered into an indissoluble relation. . . . There was no place for recon- 
sideration or revocation except through revolution or through consent of 
the States. Considered therefore as transactions under the Constitution, 
the ordinance of secession adopted by the Convention, and ratified by a 
majority of the citizens of Texas, was absolutely null and utterly without 
operation in law. The obligations of the State as a member of the Union, 
and of every citizen of the State as a citizen of the United States, remained 
perfect and unimpaired." The State did not cease to be a State, nor her 
citizens to be citizens of the Union. See also the cases of White v. Hart 
(13 Wall. 646) and Keiih v. Clark (97 U. S. 451). 

As respects the argument that the Union established by the Constitution 
of 1789 must be perpetual, because it is declared to have been designed to 
make a previous perpetual Union more perfect, it may be remarked, as matter 
of history, that this previous Union (that resting on the Articles of Con- 
federation) had not proved perpetual, but was in fact put an end to by the 
acceptance in 1788 of the new Constitution by the nine States who first 



430 THE NA TIONAL GO VERNMENT part i 

emanating from the whole people, and alterable by them 
only in the manner which its own terms prescribe. It 
is "an indestructible Union of indestructible States." 

It follows from the recognition of the indestructibility 
of the Union that there must somewhere exist a force 
capable of preserving it. The National government is 
now admitted to be such a force. " It can exercise all 
powers essential to preserve and protect its own existence 
and that of the States, and the constitutional relation of 
the States to itself, and to one another."^ 

" May it not," some one will ask, " abuse these 
powers, abuse them so as to extinguish the States them- 
selves, and turn the federation into a unified govern- 
ment. What is there but the Federal judiciary to 
prevent this catastrophe ? and the Federal judiciary has 
only moral and not also physical force at its command." 

No doubt it may, but not until public opinion 
supports it in so doing, that is to say, not until the 
mass of the nation which now maintains, because it 
values, the Federal system, is possessed by a desire to 
overthrow that system. Such a desire may express 

ratified that instrument. After that ratification the Confederation was 
dead, and the States of North Carolina and Rhode Island, which for some 
months refused to come into the new Union, were clearly out of the old one, 
and stood alone in the world May it not then be said that those who 
destroyed a Union purporting to be perpetual were thereafter estopped from 
holding it to have been perpetual, and from founding on the word 'perpetual * 
an argument against those who tried to upset the new Union in 1 861, as the 
old one had been upset in 1 7 88. The answer to this way of putting the point 
seems to be to admit that the proceedings of 1 788 were in fact revolutionary. 
In ratifying their new Constitution in that year, the nine States broke 
through and flung away their previous compact which purported to have 
been made for ever. But they did so for the sake of forming a better and 
more enduring compact, and their extra-legal action was amply justified 
by the necessities of the case. 

An elaborate discussion of the legal relation of the States to the Union 
will be found in the learned treatise of Mr. Hurd, T]\t Theory of our 
National Existence : Boston, 1881. 

^ Venable, ut supra. 



CHAP, XXVII THE FEDERAL SYSTEM 431 

itself in proper legal form by carrying amendments to 
the Constitution which will entirely change the nature 
of the government. Or if the minority be numerous 
enough to prevent the passing of such amendments, and 
if the desire of the majority be sufficiently vehement, 
the majority which sways the National government may 
disregard legal sanctions and eflfect its object by a 
revolution. In either event — and both are improbable — 
the change which will have passed upon the sentiments 
of the American people will be a sign that Federalism 
has done its work, and that the time has arrived for new 
forms of political life. 



CHAPTER XXVIII 

WORKING RELATIONS OP THE NATIONAL AND THE 

STATE GOVERNMENTS 

The characteristic feature and special interest of the 
American Union is that it shows us two governments 
covering the same ground yet distinct and separate in 
their action. It is like a great factory wherein two 
sets of machinery are at work, their revolving wheels 
apparently intermixed, their bands crossing one another, 
yet each set doing its own work without touching or 
hampering the other. To keep the National government 
and the State governments each in the allotted sphere, 
preventing collision and friction between them, was the 
primary aim of those who formed the Constitution, a 
task the more needful and the more delicate because the 
States had been until then almost independent and there- 
fore jealous of their privileges, and because, if friction 
should arise, the National government could not remove it 
by correcting defects in the machinery. For the National 
government had not been made supreme and omnipotent. 
It was itself the creature of the Constitution. It was not 
permitted to amend the Constitution, but could only 
refer it back for amendment to the people of the States 
or to their legislatures. Hence the men of 1787, feeling 
the cardinal importance of anticipating and avoiding 



CHAP. XXVIII WORKING OF THE FEDERAL SYSTEM 433 

occasions of collision, sought to accomplish their object 
by the concurrent application of two devices. One was 
to restrict the functions of the National government to 
the irreducible minimum of functions absolutely needed 
for the national welfare, so that everything else should 
be left to the States. The other was to give that govern- 
ment, so far as those functions extended, a direct and 
immediate relation to the citizens, so that it should act 
on them not through the States but of its own authority 
and by its own officers. These are fundamental principles 
whose soundness experience has approved, and which 
well deserve to be considered by those who in time 
to come may have in other countries to frame federal or 
quasi-federal constitutions. They were studied, and to 
a large extent, though in no slavish spirit, adopted by 
the founders of the present constitution of the Swiss 
Confederation, a constitution whose success bears further 
witness to the soundness of the American doctrines. 

The working relations of the National government to 
the States may be considered under two heads, viz. its 
relations to the States as corporate bodies, and its 
relations to the citizens of the States as individuals, 
they being also citizens of the Union. 

The National government touches the States as cor- 
porate commonwealths in three points. One is their func- 
tion in helping to form the National government ; another 
is the control exercised over them by the Federal Con- 
stitution through the Federal courts ; the third is the 
control exercised over them by the Federal Legislature 
and Executive in the discharge of the governing functions 
which these latter authorities possess. 

I. The States serve to form the National government 
by choosing presidential electors, by choosing senators, 
and by fixing the franchise which qualifies citizens to vote 

VOL. I 2 F 



434 THE NATIONAL GOVERNMENT parti 

• 

for members of the House of Kepresentatives.^ No 
difficulty has ever arisen (except during the Civil War) 
from any unwillingness of the States to discharge these 
duties, for each State is eager to exercise as much influence 
as it can on the national executive and Congress. But 
note how much latitude has been left to the States. A 
State may appoint its presidential electors in any way it 
pleases. All States now do appoint them by popular 
vote. But during the first thirty years of the Union 
many States left the choice of electors to their respective 
legislatures. So a State may, by its power of prescribing 
the franchise for its State elections, prescribe whatever 
franchise it pleases for the election of its members of the 
Federal House of Representatives, and may thus admit 
persons who would in other States be excluded from the 
sufirage, or exclude persons who would in other States 
be admitted. For instance, thirteen States now allow 
aliens (i.e. foreigners not yet naturalized) to vote ; and 
any State which should admit women to vote at its own 
State elections would thereby admit them also to vote at 
congressional elections.^ The only restriction imposed on 
State discretion in this respect is that of the fifteenth 
amendment, which forbids any person to be deprived of 
suffrage, on ** account of race, colour, or previous condition 
of servitude."^ 

II. The Federal Constitution deprives the States of 
certain powers they would otherwise enjoy. Some of 

^ Congress may, if it pleases, regulate by statute the times, places, 
and manner of holding elections for representatives (Const, Art L § 4.) 

2 So in some States tribal Indians are permitted to vote. It is odd 
that the votes of persons who are not citizens of the United States might, 
in a State where parties are nearly equal, turn the choice of presidential 
electors in that State, and thereby perhaps turn the presidential election 
in the Union. 

^ The Constitutions of some States retain the old exclusion of negroes 
from the suffrage, and two exclude natives of China; but these pro- 
visions are overridden by the fifteenth constitutional amendment. 



CHAP. XXVIII WORKING OF THE FEDERAL SYSTEM 435 

these, such as that of making treaties, are obviously 
unpennissible, and such as the State need not regret.^ 
Others, however, seriously restrain their daily action. 
They are liable to be sued in the Federal courts by another 
State or by a foreign Power. They cannot, except with 
the consent of Congress, tax exports or imports, or in 
any case pass a law impairing the obligation of a con- 
tract. They must surrender fugitives from the justice of 
any other State. Whether they have transgressed any 
of these restrictions is a question for the courts of law, 
and, if not in the first instance, yet always in the last 
resort a question for the Federal Supreme court. K it 
is decided that they have transgressed, their act, be it 
legislative or executive, is null and void.^ 

The President as national executive, and Congress 
as national legislature, have also received from the 
Constitution the right of interfering in certain specified 
matters with the governments of the States. Congress 
of course does this by way of legislation, and when an 
Act of Congress, made within the powers conferred by 
the Constitution, conflicts with a State statute, the 

^ As the States had not been accustomed to act as sovereign common- 
wealths in international affairs, they yielded this right to the National 
government without demur ; whereas Swiss history shows the larger 
cantons to have been unwilling to drop the practice of sending their own 
envoys to foreign powers and making bargains on their own behal£ 

2 Mr. Justice Miller observes {Centennial Address at Philadelphia) 
that "at no time since the formation of the Union has there been a 
period when there were not to be found on the statute books of some 
of the States acts passed in violation of the provisions of the Con- 
stitution regarding commerce, acts imposing taxes and other burdens 
upon the free interchange of commodities, discriminating against the 
productions of other States, and attempting to establish regulations 
of commerce, which the Constitution says shall only be done by Con- 
gress." All such acts are of course held invalid by the courts when 
questioned before them. 

It has very recently been held that a State cannot forbid a common 
carrier to bring into its jurisdiction intoxicating liquors from another 
State {Bowman v. G, d: N. W, Ely. 125 U.S.) 



436 THE NA TIONAL GO VERNMENT part i 

former prevails against the latter. It prevails by mak- 
ing the latter null and void, so that if a State statute 
has been duly passed upon a matter not forbidden to a 
State by the Constitution, and subsequently Congress 
passes an act on the same matter, being one whereon 
Congress has received the right to legislate, the State 
statute, which was previously valid, now becomes in- 
valid to the extent to which it conflicts with the Act of 
Congress. For instance. Congress has power to establish a 
uniform law of bankruptcy over the whole Union. It has 
formerly, in the exercise of this power, passed bankruptcy 
laws ; but these have been repealed, and at present the 
subject is left to the State laws, which are accordingly in 
full force in the several States.^ Were Congress again 
to legislate on the subject, these State laws would lose 
their force ; ^ and if the law passed by Congress were 
again repealed, they would again spring into life. The 
field of this so-called concurrent legislation is large, for 
Congress has not yet exercised all the powers vested in 
it of superseding State action. 

It was remarked in last chapter that in determining 
the powers of Congress on the one hand and of a State 
government on the other, opposite methods have to be 
followed. The presumption is always in favour of the 
State ; and in order to show that it cannot legislate on 
a subject, there must be pointed out within the four 
corners of the Constitution some express prohibition of 
the right which it 'prima facie possesses, or some implied 
prohibition arising from the fact that legislation by it 

^ The lawyer may refer on this subject to the interesting case of 
Sturges v. Crotoninshieldy 4 Wheat. 196. 

2 And in this instance they would lose their force altogether, because 
the power of Congress being to establish a " uniform " law, the continued 
existence of statutes differing in the different States would prevent the 
law of bankruptcy from being uniform over the Union. 



CHAP. XXVIII WORKING OF THE FEDERAL SYSTEM 437 

would conflict with legitimate federal authority.^ On 
the other hand, the presumption is always against 
Congress, and to show that it can legislate, some 
positive grant of power to Congress in the Constitu- 
tion must be pointed out.^ When the grant is 
shown, then the Act of Congress has, so long as 
it remains on the statute book, all the force of 
the Constitution itself. In some instances the grant 
of power to Congress to legislate is auxiliary to 
a prohibition imposed on the States. This is notably 
the case as regards the amendments to the Constitu- 
tion, passed for the protection of the lately liberated 
negroes. They interdict the States from either re- 
cognizing slavery, or discriminating in any way against 
any class of citizens ; they go even beyond citizens in 
their care, and declare that "no State shall deny to 
any person within its jurisdiction the equal protection 
of the laws." Now, by each of these amendments. 
Congress is also empowered, which practically means 
enjoined, to ** enforce by appropriate legislation" the 
prohibitions laid upon the States. Congress has done 
so, but some of its eflforts have been held to go beyond 
the directions of the amendments, and to be therefore 
void.^ The grant of power has not covered them. 

Where the President interferes with a State, he does 
so either under his duty to give effect to the legislation of 
Congress, or under the discretionary executive functions 

^ Otherwise in the Federal Constitution of Canada. See Note to 
Chapter XXX. 

2 The grant need not, however, be express, for it has frequently been 
held that a power incidental or instrumental to a power expressly given 
may be conferred upon Congress by necessary implication. See M*Culloch 
V. Maryland, 4 Wheat p. 316, and post. Chapter XXXIII. 

3 See the Appendix (by Judge Cooley) to the last edition of Story's 
CommentarieSj and the cases on the three last amendments coUected in 
Dest/s Constitution of the United States Annotated, 



438 THE NA TIONAL GO VERNMENT part r 

which the Constitution has entrusted to him. So if any 
State were to depart from a republican form of govern- 
ment, it would be his duty to bring the fact to the 
notice of Congress in order that the guarantee of that 
form contained in the Constitution might be made 
effective. If an insurrection broke out against the 
authority of the Union, he would (as in 1861) send 
Federal troops to suppress it. If there should be rival 
State governments, each claiming to be legitimate, the 
President might, especially if Congress were not sitting, 
recognize and support the one which he deemed regular 
and constitutional.^ 

Are these, it may be asked, the only cases in 
which Federal authority can interfere within the limits 
of a State to maintain order ? Are law and order, 
i.e. the punishment of crimes and the enforcement 
of civil rights, left entirely to State authorities ? The 
answer is : — 

Offences against Federal statutes are justiciable in 
Federal courts, and punishable under Federal authority. 
There is no Federal common law of crimes. 

Resistance offered to the enforcement of a Federal 
statute may be suppressed by Federal authority. 

Attacks on the property of the Federal government 
may be repelled, and disturbances thence arising may be 
quelled by Federal authority. 

The judgments pronounced in civil causes by Federal 
courts are executed by the officers of these courts. 

All other offences and disorders whatsoever are left 

^ In 1874-76 a contest having arisen in Louisiana between two 
governments each claiming to be the legal government of the State, 
Federal military aid was supplied to one of them by the President 
and his action was afterwards approved by Congress. It has been 
doubted, however, whether the case could properly be deemed one of 
** domestic violence " within the meaning of Art iv. § 4 of the Constitu- 
tion. 



CHAP. XXVIII WORKING OF THE FEDERAL SYSTEM 439 

to be dealt with by the duly constituted authorities of 
the State, who are, however, entitled in one case to 
summon the power of the Union to their aid. 

This case is that of the breaking out in a State of 
serious disturbances. The President is bound on the 
application of the State legislature or executive to quell 
such disturbances by the armed forces of the Union, or 
by directing the militia of another State to enter. Thus 
in 1794 Washington suppressed the so-called Whisky 
Insurrection in Pennsylvania by the militia of Pennsyl- 
vania, New Jersey, Virginia, and Maryland.^ President 
Grant was obliged to use military force during the 
troubles which disturbed several of the Southern States 
after the Civil War ; as was President Hayes, during the 
tumults in Pennsylvania caused by the great railway 
strikes of 1877. There have, however, been cases, 
such as the Dorr rebellion in Rhode Island in 1842,^ 
in which a State has itself suppressed an insurrec- 
tion against its legitimate government. It is the duty 
of a State to do so if it can, and to seek Federal 
aid only in extreme cases, when resistance is formid- 
able. 

So far we have been considering the relations of the 
National government to the States as political communi- 
ties. Let us now see what are its relations to the indi- 
vidual citizens of these States. They are l^fitizens of the 
Union as well as of the States, and owe allegiance to 
both powers. Each power has a right to command 

1 See Hildreth's History of the United States, iv. p. 604. This was 
the first assertion by arms of the supreme authority of the Union, and 
produced an enormous effect upon opinion. 

2 President Tyler ordered the militia of Connecticut and Massachusetts 
to be prepared to enter Rhode Island and suppress the rebellion, but the 
Rhode Island militia proved equal to the occasion and succeeded in 
suppressing Dorr. Instances of Federal intervention have been very 
rare. 



440 THE NA TIONAL GO VERNMENT part i 

their obedience. To which then, in case of conflict, is 
obedience due ? 

The right of the State to obedience is wider in the 
area of matters which it covers. Prima facie, every 
State law, every order of a competent State authority, 
binds the citizen, whereas the National government has 
but a limited power : it can legislate or command only 
for certain purposes or on certain subjects. But within 
the limits of its power, its authority is higher than that 
of the State, and must be obeyed even at the risk of 
disobeying the State. A recent instance in which a 
State ofl&cial sufi^ered for obeying his State where 
its directions clashed with a provision of the Federal 
Constitution may set the point in a clear light. 
A statute of California had committed to the city 
and county authority of San Francisco the power of 
making regulations for the management of gaols. 
This authority had in 1876 passed an ordinance direct- 
ing that every male imprisoned in the county gaol 
should " immediately on his arrival have his hair clipped 
to a uniform length of one inch from the scalp." The 
sherifi' having, under this ordinance, cut ofi* the queue 
of a Chinese prisoner. Ho Ah Kow, was sued for damages 
by the prisoner, and the court, holding that the ordinance 
had been passed with a special view to the injury of .the 
Chinese, who consider the preservation of their queue a 
matter of religion as well as of honour, and that it 
operated unequally and oppressively upon them, in 
contravention of the fourteenth amendment to the Con- 
stitution of the United States, declared the ordinance 
invalid, and gave judgment against the sherifi:^ Similar 

1 Case of Ho Ah Kow v. Matthew Nunan ^July 1879), 6 Sawyer, 
Circuit Court Reports^ p. 552. A similar ordinance had been some years 
before courageously vetoed by Mr. Alvord, then mayor of San Francisco. 



CHAP. XXVIII WORKING OF THE FEDERAL SYSTEM 441 

subsequent attempts against the Chinese, made under 
cover of the constitution of California of 1879 and divers 
statutes passed thereunder, have been defeated by the 
courts. 

The safe rule for the private citizen may be thus 
expressed: "Ascertain whether the Federal law is con- 
stitutional (i.e. such as Congress has power to pass). If 
it is, conform your conduct to it at all hazards. If it 
is not, disregard it, and obey the law of your State." 
This may seem hard on the private citizen. How shall 
he settle for himself such a delicate point of law as 
whether Congress had power to pass a particular statute, 
seeing that the question may be doubtful and not have 
come before the courts ? But in practice little incon- 
venience arises, for Congress and the State legislatures 
have learnt to keep within their respective spheres, and 
the questions that arise between them are seldom such 
as need disturb an ordinary man. 

The same remarks apply to conflicts between the 
commands of executive ofl&cers of the National govern- 
ment on the one hand, and those of State officials on 
the other. If the national oflScer is acting within his 
constitutional powers, he is entitled to be obeyed in 
preference to a State official, and conversely, if the 
State official is within his powers, and the national 
officer acting in excess of those which the Federal Con- 
stitution confers, the State official is to be obeyed. 

The limits of judicial power are more difficult of 
definition. Every citizen can sue and be sued or in- 
dicted both in the courts of his State and in the 
Federal courts, but in some classes of cases the former, 
in others the latter, is the proper tribunal, while in 
many it is left to the choice of the parties before which 
tribunal they will proceed. Sometimes a plaintiff* who has 



442 THE NATIONAL GOVERNMENT parti 

brought his action in a State court finds when the case 
has gone a certain length that a point of Federal law- 
turns up which entitles either himself or the defendant 
to transfer it to a Federal court, or to appeal to such a 
court should the decision have gone against the appli- 
cability of the Federal law. Suits are thus constantly 
transferred from State courts to Federal courts, but you 
can never reverse the process and carry a suit from a 
Federal court to a State court. Within its proper sphere 
of pure State law, and of course the great bulk of the 
cases turn on pure State law, there is no appeal from a 
State court to a Federal court ; and though the point of 
law on which the case turns may be one which has arisen 
and been decided in the Supreme court of the Union, a 
State judge, in a State case, is not bound to regard 
that decision. It has only a moral weight, such as 
might be given to the decision of an English court, 
and where the question is one of State law, whether 
common law or statute law, in which State courts have 
decided one way and a Federal court the other way, the 
State judge ought to follow his own courts. So far 
does this go, that a Federal court in administering State 
law, ought to reverse its own previous decision rather 
than depart from the view which the highest State court 
has taken. ^ All this seems extremely complex. I can 
only say that it is less troublesome in practice than 
could have been expected, because American lawyers are 
accustomed to the intricacies of their system. 

When a plaintiff has the choice of proceeding in a 
State court or in a Federal court, he is sometimes, 

^ This ia especiaUy the rule in cases involving the title to land. See 
Cooley, Principles, p. 131. But though the theory is as stated in the 
text, the Federal courts not unfrequently act upon their own view of the 
State law, and have sometimes been accused of going so far as to create a 
sort of Federal common law. 



CHAP. XXVIII WORKING OF THE FEDERAL SYSTEM 443 

especially if he has a strong case, inclined to select the 
latter, because the Federal judges are more independent 
than those of most of the States, and less likely to be 
influenced by any bias. So, too, if he thinks that local 
prejudice may tell against him, he will prefer a Federal 
court, because the jurors are summoned from a wider 
area, and because the judges are accustomed to exert a 
larger authority in guiding and controlling the jury. 
But it is usually more convenient to sue in a State 
court, seeing that there is such a court in every county, 
whereas Federal courts are compiaratively few ; in many 
States there is but one.^ 

How does the Federal authority, be it executive or 
judicial, act upon the citizens of a State ? It acts on 
them directly by means of its own oflficers, who are 
quite distinct from and independent of the State 
officials. Federal indirect taxes, for instance, are levied 
all along the coast and over the country by Federal 
custom-house collectors and excisemen, acting under the 
orders of the treasury department at Washington. The 
judgments of Federal courts are carried out by United 
States marshals, likewise dispersed over the country 
and supplied with a staff of assistants. This is a pro- 
vision of the utmost importance, for it enables the 
central national government to keep its finger upon 
the people everywhere, and make its laws and the 
commands of its duly constituted authorities respected 
whether the State within whose territory it acts be 
heartily loyal or not, and whether the law which is 
being enforced be popular or obnoxious. The machinery 
of the National government ramifies over the whole 

^ Of course a plaintiff who tliinks local prejudice will befriend him 
will choose the State court, but the defendant may have the cause removed 
to a Federal court if he be a citizen of another State or an alien, or if the 
question at issue is such as to give Federal jurisdiction. 



444 THE NATIONAL GOVERNMENT parti 

Union as the nerves do over the human body, placing 
every point in direct connection with the central execu- 
tive. The same is, of course, true of the army : but the 
army is so small and stationed in so few spots, mostly 
in the Far West where Indian raids are feared, that it 
scarcely comes into a view of the ordinary working of 
the system. 

What happens if the authority of the National 
government is opposed, if, for instance, an execution 
levied in pursuance of a judgment of a Federal court is 
resisted, or Federal excisemen are impeded in the seizure 
of an illicit distillery? 

Supposing the United States marshal or other Fede- 
ral officer to be unable to overcome the physical force 
opposed to him, he may summon all good citizens to 
assist him, just as the sheriff may summon the 'posse 
comitatus. If this appeal proves insufficient, he must 
call upon the President, who may either order national 
troops to his aid or may require the militia of the State 
in which resistance is offered to overcome that resistance. 
Inferior Federal officers are not entitled to make re- 
quisitions for State force. The common law principle 
that all citizens are bound to assist the ministers of the 
law holds good in America as in England, but it is as 
true in the one country as in the other, that what is 
everybody's business is nobody's business. Practically, 
the Federal authorities are not resisted in the more 
orderly States and more civilized districts. In such 
regions, however, as the mountains of Tennessee and 
North Carolina the inland revenue officials find it very 
hard to enforce the excise laws, because the country is 
wild, concealment is easy among the woods and rocks, 
and the population sides with the smugglers. And in 
some of the western States an injunction granted by a 



CHAP. XXVIII WORKING OF THE FEDERAL SYSTEM 445 

court, whether a Federal or a State court, is occasionally 
disregarded.^ Things were, of course, much worse before 
the War of Secession had established the authority of 
the central government on an immovable basis. Federal 
law did not prove an unquestioned protection either 
to persons who became in some districts, unpopular 
from preaching Abolitionism, or who, like the Southern 
slave-catchers, endeavoured, under the Fugitive Slave 
laws, to recapture in the northern States slaves who 
had escaped from their masters.^ Passion ran high, and 
great as is the respect for law, passion in America, as 
everywhere else in the world, will have its way. 

If the duly constituted authorities of a State resist 
the laws and orders of the National government, a 
more difficult question arises. This has several times 
happened. 

In 1798 the legislatures of Kentucky and Virginia 
adopted resolutions whereby they declared that the 
Constitution was not a submission of the States to a 
general government, but a mere compact between the 
States vesting in such a government certain strictly 
specified powers, that the general government had not been 
made the final and exclusive judge of the extent of its 
own powers, and that when it went beyond the powers 
actually granted, its assumptions were unauthoritative 
and its acts invalid. They then went on to declare that 
certain statutes recently passed by Congress were void, 
and asked the other States to join in this pronounce- 

^ The attacks upon the Chinese which Federal authorities have had 
to check have mostly taken place not in States but in Territories, such as 
Washington Territory and Montana, where the direct power of the 
Federal Government is greater than in a State. See Chapter XL VI I. 

2 It was held that a State could not authorize its courts to enforce the 
Fugitive Slave laws. Being Federal statutes, they must be left to be en- 
forced by the National government only. See Prigg v. Pennsylvania^ 16 
Pet. 539. 



446 THE NATIONAL GOVERNMENT parti 

ment and to co-operate in securing the repeal of the 
statutes.^ 

In 1808 the legislatures of some of the New England 
States passed resolutions condemning the embargo which 
the National government had laid upon shipping by an 
Act of that year. The State judges, emboldened by these 
resolutions, " took an attitude consistently hostile to the 
embargo," holding it to be unconstitutional; and the 
Federal courts in New England " seldom succeeded in 
fii^ding juries which would convict even for the most 
flagrant violation of its provisions." ^ In 1812 the 
governors of Massachusetts and Connecticut refused to 
allow the State militia to leave their State in pursuance 
to a requisition made by the President under the 
authority of an Act of Congress, alleging the requisition 
to be unconstitutional. In 1828-30 Georgia refused to 
obey an Act of Congress regarding the Cherokee Indians, 
and to respect the treaties which the United States had 
made with this tribe and the Creeks. The Georgian legis- 
lature passed and enforced Acts in contempt of Federal 
authority, and disregarded the orders of the Supreme 
court. President Jackson, who had an old frontiersman's 
hatred to the Indians, declining to interfere. 

Finally, in 1832, South Carolina, first in a State con- 
vention and then by her legislature, amplified while pro- 

^ There have been endless discussions in America as to the true mean- 
ing and intent of these famous resolutions, a lucid account of which may 
be found in the article (by Mr. Alex. Johnston) " Kentucky Resolutions,^' 
in the American Cyclopcedia of Political Science. The Kentucky resolutions 
were drafted by Jefferson, who however did not acknowledge his author- 
ship till long afterwards, the Virginia resolutions by Madison. 

Judge Cooley observes to me, ** The most authoritative exponents of 
the States' Rights creed would probably have said that * the nuUification 
by the States of aU unauthorized acts done under cover of the Constitution * 
intended by the Resolutions, was a nullification by constitutional means." 

2 See article " Embargo " (by Mr. Alex. Johnston) in the American 
Cyclopcedia of Political Science. 



CHAP. XXVIII WORKING OF THE FEDERAL SYSTEM 447 

fessing to repeat the claim of the Kentucky resolutions 
of 1798, declared the tariff imposed by Congress to be 
null and void as regarded herself, and proceeded to 
prepare for secession and war. In none of these cases 
was the dispute fought out either in the courts or in the 
field ;^ and the questions as to the right of a State 
to resist Federal authority, and as to the means 
whereby she could be coerced, were left over for future 
settlement. Settled they finally were by the Civil 
War of 1861-65, since which time the following doctrines 
may be deemed established :— • 

No State has a right to declare an act of the 
Federal government invalid.^ 

No State has a right to secede from the Union. 

The only authority competent to decide finally on the 
constitutionality of an act of Congress or of the national 
executive is the Federal judiciary.* 



^ The Acts complained of by Kentucky and Virginia provoked a reaction 
which led to the overthrow of the Federalist party which had passed them. 
Of the most important among them, one was repealed and the other, the 
Sedition Act, expired in 1801 by effluxion of time. Jefferson, when he 
became President in that year, showed his disapproval of it by pardoning 
persons convicted under it. The Embargo was raised by Congress in 
consequence of the strong opposition of New England. In these cases, 
therefore, it may be thought that the victory substantially remained with 
the protesting States, while the resistance of South Carolina to the tariff 
was settled by a compromise. 

2 Of course, as already observed, a State officer or a private citizen 
may disregard an act of the Federal government if he holds it unconsti- 
tional. But he does so at his peril. 

^ Any court, State or Federal, may decide on such a question in the 
first instance. But if the question be a purely political one, it may be 
incapable of being decided by any court whatever (see Chapter XXIV.), and 
in such cases the decision of the political departments (Congress or the 
President, as the case may be) of the Federal government is necessarily 
final, though, of course, liable to be reversed by a subsequent Congress 
or President The cases which arose on the Reconstruction Acts, after 
the War of Secession, afford an illustration. The attempts made to bring 
these before the courts failed, and the acts were enforced. See Georgia v. 
Stanton^ 6 Wall. p. 57 ; and Cooley, Principles^ pp. 138, 198. 



448 THE NATIONAL GOVERNMENT part 

Any act of a State legislature or State executiv-*^ 
conflicting with the Constitution, or with an act of tL_ ^ 
National government done under the Constitution, i^ 
really an act not of the State government, which cannot 
legally act against the Constitution, but of persoo^ 
falsely assuming to act as such government, and is there- 
fore i^so jure void.^ Those who disobey Federa/ 
authority on the ground of the commands of a State 
authority are therefore insurgents against the Union 
who must be coerced by its power. The coercion of 
such insurgents is directed not against the State but \ 
against them as individual though combined wrong- 
doers. A State cannot secede and cannot rebel. Simi- 
larly, it cannot be coerced. 

This view of the matter, which seems on the whole 
to be that taken by the Supreme court in the cases 
that arose after the Civil War, disposes, as has been 
well observed by Judge Hare,^ of the diflficulty which 
President Buchanan felt (see his message of 3d December 
1860) as to the coercion of a State by the Union. He 
argued that because the Constitution did not pro- 
vide for such coercion, a proposal in the Convention of 
1787 to authorize it having been ultimately dropped, 
it was legally impossible. The best answer to this 
contention is that such a provision would have been 
superfluous, because a State cannot legally act against 
the Constitution. All that is needed is the power, un- 
questionably contained in the Constitution (Art. iiL § 3), 

^ It may, however, happen that a State law is unconstitutional in 
part only, perhaps in some trifling details, and in such cases that part 
only will be invalid, and the rest of the law will be upheld. For instance, a 
criminal statute might be framed so as to apply retrospectively as well as 
prospectively. So far as retrospective it would be bad, but good for aU 
future cases. (See Constit., Art. i. § 10, par. 1.) 

2 Lectures on American Constitviional Late, p. 45. 



CHAP. XXVIII WORKING OF THE FEDERAL SYSTEM 449 

to subdue and punish individuals guilty of treason 
against the Union. ^ 

Except in the cases which have been already 
specified, the National government has no right what- 
ever of interfering either with a State as a common- 
wealth or with the individual citizens thereof, and may 
be lawfully resisted should it attempt to do so. 

" What then ? " the European reader may ask. " Is 
the National government without the power and the 
duty of correcting the social and political evils which it 
may find to exist in a particulax State, and which a vast 
majority of the nation may condemn. Suppose wide- 
spread brigandage to exist in one of the States, endanger- 
ing life and property. Suppose contracts to be habitually 
broken, and no redress to be obtainable in the State 
courts. Suppose the police to be in league with the 
assassins. Suppose the most mischievous laws to be 
enacted, laws, for instance, which recognize polygamy, 
leave homicide unpunished, drive away capital by im- 
posing upon it an intolerable load of taxation. Is the 
nation obliged to stand by with folded arms while it sees 
a meritorious minority oppressed, the prosperity of the 
State ruined, a pernicious example set to other States ? 
Is it to be debarred from using its supreme authority to 
rectify these mischiefs ? " 

The answer is. Yes. Unless the legislation or ad- 
ministration of such a State transgresses some provision 
of the Federal Constitution (such as that forbidding ex 
post facto laws, or laws impairing the obligation of a 
contract), the National government not only ought not 
to interfere but cannot interfere. The State must go 

^ The Swiss Constitution aUows the Federal government to coerce a 
disobedient canton. This is commonly done by quartering Federal 
troops in it at its expense till its government yields — a form of coercion 
which Swiss frugality dislikes, or by withholding its share of Federal grants. 

VOL. I 2 G 



450 THE NA TIONAL GO VERNMENT part i 

its own way, with whatever injury to private rights and 
common interests its folly or perversity may cause. 

Such a case is not imaginary. In the Slave States 
before the war, although the negroes were not generally 
ill treated, many shocking laws were passed, and society 
was going from bad to worse. In parts of a few of 
the western, and especially of the south-western States 
at this moment, the roads and even the raQways are 
infested by robbers, justice is uncertain and may 
be unattainable when popular sentiment does not 
support the law. Homicide often goes unpunished by 
the courts, though sometimes punished by Judge LyncL 
So, too, in a few of these States statutes opposed to 
sound principles of legislation have been passed, and 
have brought manifold evils in their train. But 
the Federal government looks on unperturbed, with no 
remorse for neglected duty. 

The obvious explanation of this phenomenon is that 
the large measure of independence left to the States 
under the Federal system makes it necessary to tolerate 
their misdoings in some directions. As a distinguished 
authority ^ observes, " The Federal Constitution provided 
for the protection of contracts, and against those oppres- 
sions most likely to result from popular passion and de- 
moralization ; and if it had been proposed to go further 
and give to the Federal authority a power to intervene 
in still more extreme cases, the answer would probably 
have been that such cases were far less likely to arise 
than was the Federal power to intervene improperly under 
the pressure of party passion or policy, if its intervention 
were permitted. To have authorized such intervention 
would have been to run couliter to the whole spirit of the 
Constitution, which kept steadily in view as the wisest 

^ Judge Cooley, in a letter to the author. 



CHAP. XXVIII WORKING OF THE FEDERAL SYSTEM 451 

policy local goveminent for local aflfairs, general govern- 
ment for general affairs only. Evils would unquestion- 
ably arise. But the Philadelphia Convention believed 
that they would be kept at a minimum and most quickly 
cured by strict adherence to this policy. The scope for 
Federal interference was considerably enlarged after the 
Civil War, but the general division of authority between 
the States and the nation was not disturbed." 

So far from lamenting as a fault, though an unavoid- 
able fault, of their Federal system, the State independ- 
ence I have described, the Americans are inclined to praise 
it as a merit. They argue, not merely that the best way 
on the whole is to leave a State to itself, but that this 
is the only way in which a permanent cure of its diseases 
will be effected. They are consistent not only in their 
Federal principles but in their democratic principles. 
"As laissez aller,^' they say, '*is the necessary course 
in a Federal government, so it is the right course in all 
free governments. Law wiU never be strong or re- 
spected unless it has the sentiment of the people behind 
it. If the people of a State make bad laws, they will 
suflFer for it. They will be the first to suffer. Let them 
suffer. Suffering, and nothing else, will implant that 
sense of responsibility which is the first step to reform. 
Therefore let them stew in their own juice : let them 
make their bed and lie upon it. If they drive capital 
away, there will be less work for the artisans : if they 
do not enforce contracts, trade will decline, and the evil 
will work out its remedy sooner or later. Perhaps it 
will be later rather than sooner : if so, the experience 
will be all the more conclusive. Is it said that the 
minority of wise and peaceable citizens may suffer ? Let 
them exert themselves to bring their fellows round to a 
better mind. Keason and experience will be on their 



452 THE NATIONAL GOVERNMENT parti 

side. We cannot be democrats by halves ; and where 
self-government is given, the majority of the community 
must rule. Its rule will in the end be better than that 
of any external power." No doctrine more completely 
pervades the American people, the instructed as well as 
the uninstructed. Philosophers will tell you that it is 
the method by which Nature governs, in whose economy 
error is followed by pain and suffering, whose laws carry 
their own sanction with them. Divines will tell you 
that it is the method by which God governs : God is a 
righteous Judge and God is provoked every day, yet 
He makes His sun to rise on the evil and the good, and 
sends His rain upon the just and the unjust. He does 
not directly intervene to punish faults, but leaves sin to 
bring its own appointed penalty. Statesmen wUl point to 
the troubles which followed the attempt to govern the re- 
conquered seceding States, first by military force and then 
by keeping a great part of their population disfranchised, 
and will declare that such evils as still exist in the South 
axe far less grave than those which the denial of ordinary 
self-government involved. " So," they pursue, " Texas 
and California will in time unlearn their bad habits and 
come out right if we leave them alone : Federal inter- 
ference, even had we the machinery needed for prose- 
cuting it, would check the natural process by which the 
better elements in these raw communities are purging 
away the maladies of youth, and reaching the settled 
health of manhood." 

A European may say that there is a dangerous side 
to this application of democratic faith in local majorities 
and in laissez aller. Doubtless there is : yet those 
who have learnt to know the Americans will answer that 
no nation so well understands its own business. 



CHAPTEK XXIX 

CRITICISM OF THE FEDERAL SYSTEM 

All Americans have long been agreed that the only 
possible form of government for their country is a 
Federal one. All have perceived that a centralized 
system would be inexpedient, if not unworkable, over so 
large an area, and have still more strongly felt that to 
cut up the continent into absolutely independent States 
would not only involve risks of war but injure com- 
merce and retard in a thousand ways the material de- 
velopment of every part of the country. But regarding 
the nature of the Federal tie that ought to exist there 
have been keen and frequent controversies, dormant at 
present, but which might break out afresh should there 
arise a new question of social or economic change capable 
of bringing the powers of Congress into coUision with 
the wishes of any State or group of States. The general 
suitability to the country of a Federal system is there- 
fore accepted, and need not be discussed. I pass to 
consider the strong and weak points of that which 
exists. 

The faults generally charged on federations as com- 
pared with unified governments are the following : — 

I. Weakness in the conduct of foreign affairs. 

II. Weakness in home government, that is to say, 



454 THE NATIONAL GOVERNMENT parti 

deficient authority over the component States and the 
individual citizens. 

III. Liability to dissolution by the secession or 
rebellion of States. 

IV. Liability to division into groups and factions 
by the formation of separate combinations of the com- 
ponent States. 

V. Want of uniformity among the States in legisla- 
tion and administration. 

VL Trouble, expense, and delay due to the com- 
plexity of a double system of legislation and adminis- 
tration. 

The first four of these are all due to the same cause, 
viz. the existence within one government, which ought 
to be able to speak and act in the name and with the 
united strength of the nation, of distinct centres of 
force, organized political bodies into which part of the 
nation's strength has flowed, and whose Desistance to 
the wiU of the majority of the whole nation is likely to 
be more effective than could be the resistance of indi- 
viduals, because such bodies have each of them a govern- 
ment, a revenue, a militia, a local patriotism to unite 
them, whereas individual recalcitrants, however nimier- 
ous, would be unorganized, and less likely to find a 
legal standing ground for opposition. The gravity 
of the first two of the four alleged faults has been 
exaggerated by most writers, who have assumed on 
rather scanty grounds that Federal governments are 
necessarily weak governments. History does not war- 
rant so broad a proposition. Assuming, however, for 
the sake of argument, that troubles may be expected 
to flow from these four features of a Federal system, let 
us see how far America has experienced such troubles. 

I. In its early years, the Union was not successful in 



CHAP. XXIX CRITICISM OF THE FEDERAL SYSTEM 455 

the management of its foreign relations. Few popular 
governments are, because a successful foreign policy 
needs in a world such as ours conditions which popular 
governments seldom enjoy. Some of the faults which 
marked American policy may however be set down to 
the Federal character of the government. In the days 
of Adams, JeflFerson, and Madison, the Union put up with 
a great deal of ill-treatment from France as well as from 
England. It drifted rather than steered into the war of 
1812. The conduct of that war was hampered by the 
opposition of the New England States. The Mexican 
war of 1846 was due to the slaveholders ; but the com- 
bination among the Southern leaders which entrapped the 
nation into that conflict might have been equally suc- 
cessful in a unified country. Of late years the prin- 
ciple of abstention from Old World complications has 
been so heartily and consistently adhered to that the 
capacities of the Federal system for the conduct of foreign 
aflFairs have been little tried ; and the likelihood of any 
danger from abroad is so slender that it may be practi- 
cally ignored. But when % question of external policy 
arises which interests only one part of the Union, the 
existence of States feeling themselves specially affected 
may have a strong and probably an unfortunate influ- 
ence. It is only in this way that the American govern- 
ment can be deemed likely to suffer in its foreign rela- 
tions from its Federal character. 

II. For the purposes of domestic government the 
Federal authority is now, in ordinary times, sufficiently 
strong. However, as was remarked in last chapter, 
there have been occasions when the resistance of even a 
single State disclosed its weakness. Had a man less 
vigorous than Jackson occupied the presidential chair in 
1832, South Carolina would probably have prevailed 



456 THE NATIONAL GOVERNMENT parti 

against the Union. In the Kansas troubles of 1855-56 the 
national executive played a sorry part ; and even in the 
resolute hands of President Grant it was hampered in 
the re-establishment of order in the reconquered southern 
States by the rights which the Federal Constitution 
secured to those States. The only general conclusion on 
this point which can be drawn from history is that while 
the central government is likely to find less and less diffi- 
culty in enforcing its will against a State or disobedient 
subjects, because the prestige of its success in the CJivil 
War has strengthened it, because the Union sentiment is 
still growing, and because the facilities of communication 
make the raising and moving of troops more easy, never- 
theless recalcitrant States, or groups of States, still 
enjoy certain advantages for resistance, advantages due 
partly to their legal position, partly to their local senti- 
ment, which rebels might not have in unified countries 
like England, France, or Italy. 

III. Everybody knows that it was the Federal 
system and the doctrine of State sovereignty grounded 
thereon, and not expressly . excluded, though certainly 
not recognized, by the Constitution, which led to the 
secession of 1861, and which gave European powers a 
plausible ground for recognizing the insurgent minority 
as belligerents. Nothing seems now less probable than 
another secession, not merely because the supposed 
legal basis for it has been abandoned, and because 
the advantages of continued union are more obvious 
than ever before, but because the precedent of the victory 
won by the North will discourage like attempts in the 
future.^ This is so strongly felt that it has not even 

^ The Roman Catholic cantons of Switzerland (or rather the migority 
of them) formed a separate league (the so-called Sonderbund) which it needed 
the war of 1846 to put down. And the effect of that war was, as in the 
parallel case of America, to tighten the Federal bond for the future. 



CHAP. XXIX CRITICISM OF THE FEDERAL SYSTEM 457 

been thought worth while to add to the Constitution an 
amendment negativing the right to secede. The doctrine 
of the legal indestructibility of the Union is now well 
established. To establish it, however, cost thousands of 
millions of dollars and the lives of a million of men. 

IV. The combination of States into groups was a 
familiar feature of politics before the war. South 
Carolina and the Gulf States constituted one such, and 
the most energetic, group ; the New England States 
frequently acted as another, especially during the war 
of 1812. At present, though there are several sets of 
States whose common interests lead their representatives 
in Congress to act together, it is no longer the fashion 
for States to combine in an official way through their 
State organizations, and their doing so would excite 
reprehension. It is easier,, safer, and more effective to 
act through the great national parties. Any consider- 
able State interest (such as that of the silver-miners or 
cattle-men, or Protectionist manufacturers) can generally 
compel a party to conciliate it by threatening to forsake 
the party if neglected. Political action runs less in 
State channels than it did formerly, and the only really 
threatening form which the combined action of States 
could take, that of using for a common disloyal purpose 
State revenues and the machinery of State govern- 
ments, has become, since the failure of secession, most 
improbable. 

V. The want of uniformity in private law and methods 
of administration is an evil which diifferent minds will 
judge by different standards. Some may think it a 
positive benefit to secure a variety which is interesting 
in itself and makes possible the trying of experiments 
from which the whole country may profit. Is variety 
within a country more a gain or a loss ? Diversity in 



458 THE NATIONAL GOVERNMENT parti 



coinage, in weights and measures, in the rules regarding 
bills and cheques and banking and commerce generally, 
is obviously inconvenient. Diversity in dress, in food, 
in the habits and usages of society, is almost as obviously 
a thing to rejoice over, because it diminishes the terrible 
monotony of life. Diversity in religious opinion and 
worship excited horror in the Middle Ages, but now 
passes unnoticed unless where accompanied by intoler- 
ance. In the United States the possible diversity of 
laws is immense. Each State can play whatever tricks 
it pleases with the law of family relations, of inheritance, 
of contracts, of torts, of crimes.^ But the actual diversity 
is not great, for all the States, save Louisiana, have taken 
the English common and statute law of 1776 as their 
point of departure, and have adhered to its main prin- 
ciples. A more complete uniformity as regards marriage 
and divorce might be desirable, for it is particularly 
awkward not to know whether you are married or not, 
nor whether you have been or can be divorced or not ; 
and several States have tried bold experiments in 
divorce laws.^ But, on the whole, far less inconvenience 
than could have been expected seems to be caused by 
the varying laws of diflFerent States, partly because com- 
mercial law is the department in which the diversity 
is smallest, partly because American practitioners and 

^ Subject to a few proliibitions contained in the Constitution. 

^ Judge Cooley, however, observes to me that there is little substantial 
diversity in the laws of marriage in different States, the general rule every- 
where being that no special ceremony is requisite, and the statutory forms not 
being deemed imperative. He adds that even as regards divorce £Eir more 
trouble arises from frauds practised on the laws than from divergent pro- 
visions in the laws themselves. It may be observed that although the law 
of Scotland still differs in many material points from that of England and 
Jreland, having had a wholly different origin, British subjects and courts do 
not find the practical inconveniences arising from the diversities to be serious 
except as respects marriage and the succession to property. The mercan- 
tile law of the two countries tends to become practically the same. 



CHAP. XXIX CRITICISM OF THE FEDERAL SYSTEM 459 

judges have become expert in applying the rules for 
determining which law, where those of diflFerent States 
are in question, ought to be deemed to govern a given 
case.^ 

VL He who is conducted over an iron -clad war- 
ship, and sees the infinite intricacy of the machinery and 
mechanical appliances which it contains and by which 
its engines, its guns, its turrets, its torpedoes, its 
apparatus for anchoring and making saU, are worked, 
is apt to think that it must break down in the rough 
practice of war. He is told, however, that the more 
is done by machinery, the more safely and easily 
does everything go on, because the machinery can be 
relied on to work accurately, and the performance by it 
of the heavier work leaves the crew free to attend to the 
general management of the vessel and her armament. 
So in studying the elaborate devices with which the 
Federal system of the United States has been equipped, 
one fancies that with so many authorities and bodies 
whose functions are intricately interlaced, and some of 
which may collide with others, there must be a great 
risk of break-downs and deadlocks, not to speak of an 
expense much exceeding that which is incident to a 
simple centralized government. The Americans do not 
seem to feel this. They tell you that smoothness of 
working is secured by elaboration of device, that complex 
as the mechanism of their government may appear, the 
citizens have grown so familiar with it that its play is 
smooth and easy, attended with less trouble, and 
certainly with less suspicion on the part of the people, 
than would belong to a scheme which vested all powers 

1 American jurists, and especially Mr. Justice Story, have done 
much to elucidate this difficult branch of law, to which the name of Private 
International Law is usually (though not very happily) applied. 



46o THE NATIONAL GOVERNMENT parti 

in one administration and one legislature. The expense 
is admitted, but is considered no grave defect when 
compared with the waste which arises from untrust- 
worthy officials and legislators whose depredations would, 
it is thought, be greater were their sphere of action 
wider, and the checks upon them fewer. He who 
ezaminea a system of government from without ia 
generally disposed to overrate the difficulties in working 
which its complexity causes. Few things, for instance, 
are harder than to explain to a person who has not been 
a student in one of the two ancient English universities 
the nature of their highly complex constitution and the 
relation of the colleges to the university. If he does 
apprehend it he pronounces it too intricate for the 
purposes it has to serve. To those who have grown up 
under it, nothing is simpler and more obvious. 

There is a blemish characteristic of the American 
federation which Americans seldom notice because it 
seems to them unavoidable. This is the practice in 
selecting candidates for Federal office of regarding not 
so much the merits of the candidate as the eflfect which 
his nomination will have upon the vote of the State to 
which he belongs. Second-rate men are run for fibrat- 
rate posts, not because the party which runs them over- 
rates their capacity, but because it expects to carry their 
State either by their local influence or through the 
pleasure which the State feels in the prospect of seeing 
one of its own citizens in high office. This of course 
works in favour of the politicians who come from a large 
State. No doubt the leading men of a large State are 
prima fade more likely to be men of high ability than 
those of a small State, because the field of choice is 
wider, the competition probably keener. One is re- 
minded of the story of the leading citizen in the isle of 



CHAP. XXIX CRITICISM OF THE FEDERAL SYSTEM 461 

Seriphus who observed to Themistocles, "You would 
not have been famous had you been bom in Seriphus," 
to which Themistocles replied, " Neither would you had 
you been bom in Athens." The two great States of 
Virginia and Massachusetts reared one half of the 
men who won distinction in the first fifty years of 
the history of the Kepublic.^ Nevertheless it often 
happens that a small State produces a first-rate man, 
whom the country ought to have in its highest 
places, as President, or as Speaker of the House of 
Representatives, but who is passed over because the 
Federal system gives great weight to the voice of a 
State, and because State sentiment is so strong that the 
voters of a State which has a large and perhaps a 
doubtful vote to cast in national elections, prefer an 
inferior man in whom they are directly interested to a 
superior one who is a stranger. 

I have left to the last the gravest reproach 
which Europeans have been wont to bring against 
Federalism in America. They attribute to it the origin, 
or at least the virulence, of the great struggle over 
slavery which tried the Constitution so severely. That 
struggle created parties which, though they had ad- 
herents everywhere, no doubt tended more and more to 
become identified with States, controlling the State 
organizations and bending the State governments to 
their service. It gave tremendous importance to legal 
questions arising out of the difierences between the law 
of the Slave States and the Free States, questions which 
the Constitution had either evaded or not foreseen. It 
shook the credit of the Supreme court by making the 
judicial decision of those questions appear due to par- 

^ Webster may be fairly counted to Massachusetts, as he settled there 
in early life, and sat for many years as senator from it 



462 THE NATIONAL GOVERNMENT parti 

tiality to the Slave States. It disposed the extreme 
men on both sides to hate the Federal Union which 
bound them in the same body with their antagonists. 
It laid hold of the doctrine of State rights and State 
sovereignty as entitling a commonwealth which deemed 
itself aggrieved to shake oflF allegiance to the national 
government Thus at last it brought about secession 
and the great civil war. Even when the war was over, 
the dregs of the poison continued to haunt and vex the 
system, and bred fresh disorders in it. The constitu- 
tional duty of re-establishing the State governments of 
the conquered States on the one hand, and on the other 
hand the practical danger of doing so while their people 
remained disaflfected, produced the miUtary govern- 
ments, the " carpet bag " governments, the Ku EIux 
Klan outrages, the gift of suflFrage to a negro population 
unfit for such a privilege, yet apparently capable of 
being protected in no other way. All these mischiefs, 
it has often been argued, are the results of the Federal 
structure of the government, which carried in its bosom 
the seeds of its own destruction, seeds sure to ripen so 
soon as there arose a question that stirred men deeply. 

It may be answered not merely that the National 
government has survived this struggle and emerged 
from it stronger than before, but also that Federalism 
did not produce the struggle, but only gave to it 
the particular form of a series of legal controversies 
over the Federal pact followed by a war of States 
against the Union. Where such vast economic interests 
were involved, and such hot passions roused, there must 
anyhow have been a conflict, and it may well be that a 
conflict raging within the vitals of a centralized govern- 
ment would have proved no less terrible and would have 
left as many noxious sequelae behind. 



CHAP. XXIX CRITICISM OF THE FEDERAL SYSTEM 463 

In blaming either the conduct of a person or the 
plan and scheme of a government for evils which have 
actually followed, one is apt to overlook those other 
evils, perhaps as great, which might have flowed 
from different conduct or some other plan. All that 
can fairly be concluded from the history of the American 
Union is that Federalism is obliged by the law of its 
nature to leave in the hands of States powers whose 
exercise may give to political controversy a peculiarly 
dangerous form, may impede the assertion of national 
authority, may even, when long-continued exasperation 
has suspended or destroyed the feeling of a common 
patriotism, threaten national unity itself. Against this 
danger is to be set the fact that the looser structure of a 
Federal government and the scope it gives for diversities 
of legislation in different parts of a country may avert 
sources of discord, or prevent local discord from growing 
into a contest of national magnitude. 



CHAPTER XXX 

MERITS OP THE FEDERAL SYSTEM 

I DO not propose to discuss in this chapter the advan- 
tages of Federalism in general, for to do this we should 
have to wander oflF to other times and countries, to talk 
of Achaia and the Hanseatic League and the Swiss Con- 
federation. I shall comment on those merits only which 
the experience of the American Union illustrates. 

There are two distinct lines of argument by which 
their Federal system was recommended to the framers 
of the Constitution, and upon which it is still held forth 
for imitation to other countries. These lines have been 
so generally confounded that it is well to present them 
in a precise form. 

The first set of arguments point to Federalism 
proper, and are the following : — 

1. That Federalism furnishes the means of uniting 
commonwealths into one nation under one nation^ 
government without extinguishing their separate ad- 
ministrations, legislatures, and local patriotisms. As 
the Americans of 1787 would probably have preferred 
complete State independence to the fusion of their 
States into a unified government. Federalism was the 
only resource. So when the new Germanic Empire, 
which is really a Federation, was established in 1870, 



CHAP. XXX MERITS OF THE FEDERAL SYSTEM 465 

Bavaria and Wurtemberg could not have been brought 
under a national government save by a Federal scheme. 
Similar suggestions, as every one knows, have been 
made for re-settling the relations of Ireland to Great 
Britain, and of the self-governing British colonies to 
the United Kingdom. There are causes and conditions 
which dispose nations living under a loosely compacted 
government, or under a number of almost independent 
governments, to form a closer union in a Federal form. 
There are other causes and conditions which dispose the 
subjects of one government, or sections of these subjects, 
to desire to make their governmental union less close by 
substituting a system of a Federal character. In both 
sets of cases, the centripetal or centrifugal forces spring 
from the local position, the history, the sentiments, the 
economic needs of those among whom the problem 
arises ; and that which is good for one people or politi- 
cal body is not necessarily good for another. Federalism 
may be an equally legitimate resource where it is 
adopted for the sake of tightening or of loosening a 
pre-existing bond. 

2. That Federalism supplies the best means of de- 
veloping a new and vast country. It permits an ex- 
pansion whose extent, and whose rate and manner of 
progress, cannot be foreseen to proceed with more 
variety of methods, more adaptation of laws and ad- 
ministration to the circumstances of each part of the 
territory, and altogether in a more truly natural and 
spontaneous way, than can be expected under a central- 
ized government, which is disposed to apply its settled 
system through all its dominions. Thus the special 
needs of a new region are met by the inhabitants in the 
way they find best : its special evils are cured by special 
remedies, perhaps more drastic than an old country 

VOL. I 2 H 



466 THE NATIONAL GOVERNMENT parti 

demands, perhaps more lax than an old country would 
tolerate; while at the same time the spirit of self- 
reliance among those who build up these new com- 
munities is stimulated and respected. 

3. That it prevents the rise of a despotic central 
government, absorbing other powers, and menacing the 
private liberties of the citizen. This may now seem to 
have been an idle fear, so far as America was concerned. 
It was, however, a very real fear among the great-grand- 
fathers of the present Americans, and nearly led to the 
rejection even of so undespotic an instrument as the 
Federal Constitution of 1789. Congress (or the Presi- 
dent, as the case may be) is still sometimes described 
as a tyrant by the party which does not control it, 
simply because it is a central government : and the 
States are represented as bulwarks against its encroach- 
ments. 

The second set of arguments relate to and recom- 
mend not so much Federalism as local self-government. 
I state them briefly because they are familiar. 

4. Self-government stimulates the interest of people 
in the affairs of their neighbourhood, sustains local poli- 
tical life, educates the citizen in his daily round of civic 
duty, teaches him that perpetual vigilance and the sacri- 
fice of his own time and labour are the price that must 
be paid for individual liberty and collective prosperity. 

5. Self-government secures the good administration 
of local affairs by giving the inhabitants of each locality 
due means of overseeing the conduct of their business. 

That these two sets of grounds are distinct appears 
from the fact that the sort of local interest which local 
self-government evokes is quite a different thing from 
the interest men feel in the affairs of a large body like 
an American State. So, too, the control over its own 



CHAP. XXX MERITS OF THE FEDERAL SYSTEM 467 

affairs of a township, or even a small county, where 
everybody can know what is going on, is quite different 
from the control exercisable over the affairs of a com- 
monwealth with a million of people. Local self-govern- 
ment may exist in a unified country like England, and 
may be wanting in a Federal country like Germany. 
And in America itself, while some States, like those of 
New England, possessed an admirably complete system 
of local government, others, such as Virginia, the old 
champion of State sovereignty, were imperfectly pro- 
vided with it. Nevertheless, through both sets of 
arguments there runs the general principle, applicable 
in every part and branch of government, that, where 
other things are equal, the more power is given to 
the units which compose the nation, be they large or 
small, and the less to the nation as a whole and to its 
central authority, so much the fuller will be the liberties 
and so much greater the energy of the individuals who 
compose the people. This principle, though it had not 
been then formulated in the way men formulate it now, 
was heartily embraced by the Americans. Perhaps it 
was because they agreed in taking it as an axiom that 
they seldom referred to it in the subsequent contro- 
versies regarding State rights. These controversies pro- 
ceeded on the basis of the Constitution as a law rather 
than on considerations of general political theory. A 
European reader of the history of the first seventy years 
of the United Statesis surprised how little is said, through 
the interminable discussions regarding the relation of 
the Federal government to the States, on the respective 
advantages of centralization or localization of powers as 
a matter of historical experience and general expediency. 
Three further benefits to be expected from a Federal 
system may be mentioned, benefits which seem to have 



468 THE NA TIONAL GO VERNMENT part i 

been unnoticed or little regarded by those who estab- 
lished it in America. 

6. Federalism enables a people to try experiments 
in legislation and administration which could not be 
safely tried in a large centralized country. A compara- 
tively small commonwealth like an American State 
easily makes and unmakes its laws ; mistakes are not 
serious, for they are soon corrected ; other States profit 
by the experience of a law or a method which has worked 
well or ill in the State that has tried it. 

7. Federalism, if it diminishes the collective force of 
a nation, diminishes also the risks to which its size and 
the diversities of its parts expose it. A nation so 
divided is like a ship built with water-tight compart- 
ments. When a leak is sprung in one compartment, 
the cargo stowed there may be damaged, but the other 
compartments remain dry and keep the ship afloat So 
if social discord or an economic crisis has produced dis- 
orders or foolish legislation in one member of the Federal 
body, the mischief may stop at the State frontier instead 
of spreading through and tainting the nation at large. 

8. Federalism, by creating many local legislatures 
with wide powers, relieves the national legislature of a 
part of that large mass of functions which might other- 
wise prove too heavy for it. Thus business is more 
promptly despatched, and the great central council of 
the nation has time to deliberate on those questions 
which most nearly touch the whole country. 

All of these arguments recommending Federalism 
have proved valid in American experience. 

To create a nation while preserving the States was 
the main reason for the grant of powers which the 
National government received ; an all-sufficient reason, 
and one which holds good to-day. The several States 



CHAP. XXX MERITS OF THE FEDERAL SYSTEM 469 

have changed greatly since 1789, but they are still 
commonwealths whose wide authority and jurisdiction 
practical men are agreed in desiring to maintain. 

Not much was said in the Convention of 1787 re- 
garding the best methods of extending government over 
the unsettled territories lying beyond the Alleghany 
mountains.^ It was, however, assumed that they would 
develop as the older colonies had developed, and in point 
of fact each district, when it became sufficiently populous, 
was formed into a self-governing State, the less populous 
divisions still remaining in the status of semi-self-govern- 
ing Territories. Although many blunders have been com- 
mitted in the process of development, especially in the 
reckless contraction of debt and the wasteful disposal 
of the public lands, greater evils might have resulted 
had the creation of local institutions and the control of 
new communities been left to the Central government.* 
Congress would have been not less improvident than 
the State governments, for it would have been even 
less closely watched. The opportunities for jobbery 
would have been irresistible, the growth of order 
and civilization probably slower. It deserves to be 
noticed that, in granting self-government to all those 
of her colonies whose population is of English race, 

^ In 1787, however, the great Ordinance regulating the North-West 
Territory was enacted by the Congress of the Confederation. 

2 The United States is proprietor of the public domain in the Terri- 
tories, and when a new State is organized the ownership is not changed. 
The United States, however, makes grants of wild lands to the new State 
as follows : — (1) Of every section numbered 16 (being one thirty-sixth of 
all) for the support of common schools. (2) Of lands to endow a uni- 
versity. (3) Of the lands noted in the surveys as swamp lands, and 
which often are valuable. (4) It has usually made further grants to aid 
in the construction of railroads, and for an agricultural college. The 
grants commonly leave the United States a much larger landowner within 
the State than is the State itself, and when all the dealings of the National 
government with its lands are considered, it is more justly chargeable 
with squandering the public domain than the States are. 



470 THE NATIONAL GOVERNMENT parti 

England has practically adopted the same plan as the 
United States have done with their western territory. 
The results have been generally satisfactory, although 
England, like America, has found that her colonists 
are disposed to treat the aboriginal inhabitants, whose 
lands they covet and whose persons they hate, with a 
harshness and injustice which the mother country would 
gladly check. 

The arguments which set forth the advantages of 
local self-government were far more applicable to the 
States of 1787 than to those of 1 887. Virginia, then the 
largest State, had only half a million free inhabitants, 
less than the present population of Chicago or Liverpool. 
Massachusetts had 450,000, Pennsylvania 400,000, New 
York 300,000; while Georgia, Khode Island, and Delaware 
had (even counting slaves) less than 200,000 between 
them.^ These were communities to which the expres- 
sion "local self-government" might be appUed, for, 
although the population was scattered, the numbers were 
small enough for the citizens to have a personal know- 
ledge of their leading men, and a personal interest 
(especially as a large proportion were landowners) in the 
economy and prudence with which common aflfairs were 
managed. Now, however, when of the thirty- eight 
States twenty-two have more than a million inhabitants, 
and four have more than three millions, the newer States 
being, moreover, larger in area than most of the older 
ones, the stake of each citizen is relatively smaller, and 
generally too small to sustain his activity in politics, and 
the party chiefs of the State are known to him only by 
the newspapers or by their occasional visits on a stump- 
ing tour.^ 

^ I give the round numbers, reducing them a little from the num- 
bers which appear in the census of 1790. 

^ To have secured the real benefits of local self-government the States 



CHAP. XXX MERITS OF THE FEDERAL SYSTEM 471 

All that can be claimed for the Federal system under 
this head of the argument is that it provides the 
machinery for a better control of the taxes raised and 
expended in a given region of the country, and a better 
oversight of the public works undertaken there than 
would be possible were everything left to the Central 
government.^ As regards the educative eflFect of 
numerous and frequent elections, a European observer 
is apt to think that elections in America are too many 
and come too frequently. Overtaxing the attention of 
the citizen and frittering away his interest, they leave 
him at the mercy of knots of selfish adventurers. Of 
this, however, more will be said in a subsequent chapter. 

The utility of the State system in localizing disorders 
or discontents, and the opportunities it afi'ords for try- 
ing easily and safely experiments which ought to be 
tried in legislation and administration, constitute benefits 
to be set ofi" against the risk, referred to in the last 
preceding chapters, that evils may continue in a district, 
may work injustice to a minority and invite imitation 
by other States, which the wholesome stringency of 
the Central government might have suppressed. Euro- 
peans are startled by the audacity with which Americans 
apply the doctrine of laissez alter; Americans declare 
that their method is not only the most consistent but 
in the end the most curative. 

A more unqualified approval may be given to the 

ought to have been kept at a figure not much above that of their original 
population, their territory being cut up into new States as the population 
increased. Had this been done — no doubt at the cost of some obvious 
disadvantages, such as the undue enlargement of the Senate, and the pre- 
dominance of a single large city, in a State, — there would now be more 
than two hundred instead of only thirty-eight States. 

^ It must, of course, be remembered that in most parts of the Union 
the local self-government of cities, counties, townships, and school districts 
exists in a more complete form than in any of the great countries of 
Europe. — As to this, see Chapters XLVIII.-LII. post 



472 THE NATIONAL GOVERNMENT part i 

I 

division of legislative powers. The existence of the 
State legislatures relieves Congress of a burden too heavy 
for its shoulders; for although it has far less foreign 
policy to discuss than the Parliaments of England, 
France, or Italy, and although the separation of the 
executive from the legislative department gives it less 
responsibility for the ordinary conduct of the admin- 
istration than devolves on those Chambers, it could not 
possibly, were its competence as large as theirs, deal 
with the multiform and increasing demands of the 
different parts of the Union. There is great diversity 
in the material conditions of different parts of the country, 
and at present the people, particularly in the West, are 
eager to have their diflficulties handled, their economic 
and social needs satisfied, by the State and the law. 
Having only a limited field of legislation left to it, 
Congress may be thought to enjoy better opportunities 
than the overtasked English Parliament of cultivating 
that field well. Nevertheless, as has been shown in a 
previous chapter, its public legislation is scanty, and its 
private legislation careless and wasteful. 

These merits of the Federal system of government 
which I have enumerated are the counterpart and con- 
sequences of that limitation of the central authority 
whose dangers were indicated in last chapter. They 
are, if one may reverse the French phrase, the qualities 
of Federalism's defects. The problem which all federalized 
nations have to solve is how to secure an efficient central 
government and preserve national unity, while allowing 
free scope for the diversities, and free play to the 
authorities, of the members of the federation. It is, to 
adopt that favourite astronomical metaphor which no 
American panegyrist of the Constitution omits, to keep 
the centrifugal and centripetal forces in equilibrium, so 



CHAP. XXX MERITS OF THE FEDERAL SYSTEM 473 

that neither the planet States shall fly q& into space, 
nor the sun of the Central government draw them 
into its consuming fires. The characteristic merit 
of the American Constitution lies in the method by 
which it has solved this problem. It has given the 
National government a direct authority over all citizens, 
irrespective of the State governments, and has therefore 
been able safely to leave wide powers in the hands of 
those governments. And by placing the Constitution 
above both the National and the State governments, it 
has referred the arbitrament of disputes between them 
to an independent body, charged with the interpretation 
of the Constitution, a body which is to be deemed not 
so much a third authority in the government as the 
living voice of the Constitution, the unfolder of the 
mind of the people whose will stands expressed in that 
supreme Instrument. 

The application of these two principles, unknown to, 
or at any rate little used by, any previous federation,^ 
has contributed more than anything else to the stability 
of the American system, and to the reverence which its 
citizens feel for it, a reverence which is the best security 
for its permanence. Yet even these devices would not 
have succeeded but for the presence of a mass of moral 
and material influences stronger than any political de- 
vices, which have maintained the equilibrium of centri- 
fugal and centripetal forces. On the one hand there 
has been the love of local independence and self-govern- 
ment ; on the other, the sense of community in blood, 
in language, in habits and ideas, a common pride in the 
national history and the national flag. 

^ The central government in the Achaian League had apparently a 
direct authority over the citizens of the several cities, but it was so ill 
defined and so little employed that we can hardly cite that instance as a 
precedent 



474 THE NATIONAL GOVERNMENT parti 

Quid leges sine morihus f The student of institu- 
tions, as well as the lawyer, is apt to overrate the eflfect 
of mechanical contrivances in politics. I admit that in 
America they have had one excellent result ; they have 
formed a legal habit in the mind of the nation. But 
the true value of a political contrivance resides not in its 
ingenuity but in its adaptation to the temper and circum- 
stances of the people for whom it is designed, in its 
power of using, fostering, and giving a legal form to tliose 
forces of sentiment and interest which it finds in being. 
So it has been with the American system. Just as the 
passions which the question of slavery evoked strained 
the Federal fabric, disclosing unforeseen weaknesses, so 
the love of the Union, the sense of the material and 
social benefits involved in its preservation, appeared 
in unexpected strength, and manned with zealous de- 
fenders the ramparts of the sovereign Constitution. It is 
this need of determining the suitability of the machinery 
for the workmen and its probable influence upon them, 
as well as the capacity of the workmen for using and 
their willingness to use the machinery, which makes it 
so difficult to predict the operatioii of a political con- 
trivance, or, when it has succeeded in one country, to 
advise its imitation in another. The growing strength 
of the national government in the United States is largely 
due to sentimental forces that were weak a century ago, 
and to a development of internal communications which 
was then undreamt of. And the devices which we 
admire in the Constitution might prove unworkable 
among a people less patriotic and self-reliant, less law- 
loving and law-abiding, than are the English of America. 



CHAPTER XXXI 

GROWTH AND DEVELOPMENT OP THE CdNSTITUTION 

There is another point of view from which we have 
still to consider the Constitution. It is not only a 
ftindamental law, but an unchangeable law, unchange- 
aWe, that is to say, by the national legislature, and 
changeable even by the people only through a slow 
and difficult process. How can a country whose very 
name suggests to us movement and progress be governed 
by a system and under an instrument which remains the 
same from year to year and from century to century ? 

When we talk of the Constitution of a state or a 
nation we mean those of its rules or laws which deter- 
mine the form of its government, and the respective 
rights and duties of the government towards the citizens 
and of the citizens towards the government. These rules, 
or the most important among them, may be contained in 
one document, such as the Swiss or Belgian Constitution, 
or may be scattered through a multitude of statutes and 
reports of judicial decisions, as is the case with regard to 
what men call the English Constitution. This is a dis- 
tinction of practical consequence. But a still more im- 
portant diflference exists in the fact that in some countries 
the rules or laws which make up the Constitution can be 
made and changed by the ordinary legislature just like 



476 THE NATIONAL GOVERNMENT parti 

any other laws, while in other countries such rules are 
placed above and out of the reach of the legislature, 
having been enacted and being changeable only by some 
superior authority. In countries of the former cla^ the 
so-called Constitution is nothing more than the aggre- 
gate of those laws — taking law in its widest sense to 
include customs and judicial decisions — ^which have a 
political character ; and this description is too vague to be 
scientifically useful, for no three jurists would agree as 
to which laws ought to be deemed political. In such 
countries there is nothing either in the form of what are 
commonly called constitutional laws, or in the source 
from which they emanate, or in the degree of their 
authority, to mark them off from other laws. The Con- 
stitution of England is constantly changing, for as the 
legislature, in the ordinary exercise of its powers, fre- 
quently passes enactments which affect the methods of 
government and the political rights of the citizens, there 
is no certainty that what is called the Constitution will 
stand the same at the end of a given session of Par- 
liament as it stood at the beginning.^ A constitution 

^ The first statesman who remarked this seems to have been James 
Wilson, who said in 1788/* The idea of a constitution limiting and enper- 
intending the operations of legislative authority, seems not to have been 
accurately understood in Britain. There are at least no traces of practice 
conformable to such a principle. The British Constitution is just what 
the British Parliament pleases. When the Parliament transferred legis- 
lative authority to Henry VIII., the act transferring could not, in the 
strict acceptation of the term, be called unconstitutionaL To control the 
powers and conduct of the legislature by an overruling constitution was 
an improvement in the science and practice of government reserved to the 
American States." — Elliot's Debates^ ii. 432. F^ley said this in his Aforol 
Philosophy y published just before. See the observations of Mr. Theodore 
W. Dwight on Harrington's proposals for a supreme constitution {PoL 
Sc Quarterly y for March 1887); and Oliver Cromwell's Instrument, called 
" The Government of the Commonwealth of England, Scotland, and Ire- 
land," printed in the Parliamentary History, vol. iii p. 1417. It was pro- 
vided by this instrument that statutes passed in Parliament should take 
effect, even if not assented to by the Lord Protector, but only if they were 



CHAP. XXXI DEVELOPMENT OF THE CONSTITUTION 477 

of this kind, capable at any moment of being bent or 
turned, expanded or contracted, may properly be called 
a Flexible Constitution. 

In countries of the other class the laws and rules 
which prescribe the nature, powers, and functions of the 
government are contained in a document or documents 
emanating from an authority superior to that of the 
legislature. This authority may be a monarch who has 
octroye a charter alterable by himself only. Or it may 
be the whole people voting at the polls ; or it may be a 
special assembly, or combination of assemblies, appointed 
ad hoc. In any case we find in such countries a law or 
group of laws distinguished from other laws not merely 
by the character of their contents, but by the source 
whence they spring and by the force they exert, a force 
which overrides and breaks all enactments passed by the 
ordinary legislature. Where the Constitution consists 
of such a law or laws, I propose to call it a Kigid Con- 
stitution, i.e. one which cannot be bent or twisted by 
the action of the legislature, but stands stiflF and solid, 
opposing a stubborn resistance to the attacks of any 
majority who may desire to trangress or evade its 
provisions. As the English Constitution is the best 
modem instance of the flexible type, so is the American 
of the rigid type. 

It will at once be asked, How can any constitution be 
truly rigid ? Growth and decay are the necessary con- 
ditions of the life of institutions as well as of individual 
organisms. One constitution may be altered less fre- 

agreeable to the articles of the instrument, which would therefore appear 
to have been a genuine rigid constitution within the terms of the defini- 
tion here given. Some of the provisions of the articles are so minute that 
they can hardly have been intended to be placed above change by Parlia- 
ment ; but Cromwell seems from the remarkable speech which he delivered 
on 16th December 1653, in promulgating the Instrument, to have con- 
ceived that what he called the Fundamentals should be unchangeable. 



478 THE NATIONAL GOVERNMENT pakti 

quently or easily than another, but an absolutely un- 
changeable constitution is an impossibility.^ 

The question is pertinent ; the suggestion is true. 
No constitution can be made to stand unsusceptible of 
change, because if it were, it would cease to be suit- 
able to the conditions amid which it has to work, 
that is, to the actual forces which sway politics. And 
being unsuitable, it would be weak, not rooted in the 
nature of the State and in the respect of the citizens 
for whom it exists ; and being weak, it would presently 
be overthrown. If therefore we find a rigid constitution 
tenacious of life, if we find it enjoying, as Virgil says of 
the gods, a fresh and green old age, we may be sure 
that it has not stood wholly changeless, but has been so 
modified as to have adapted itself to the always altering 
circumstances that have grown up round it. Most of 
all must this be true of a new country where men and 
circumstances change faster than in Europe, and where, 
owing to the equality of conditions, the leaven of new 
ideas works more thoroughly upon the whole lump. 

We must therefore be prepared to expect that the 
American Constitution will, when its present condition 

^ The constitutions of the ancient world were aU or nearly all 
flexible, because the ancient republics were governed by primary assem- 
blies, all whose laws were of equal validity. By far the most interest- 
ing and instructive example is the Constitution of Rome. It presents 
some striking resemblances to the Constitution of England — both IdTt many 
points undetermined, both relied largely upon non-legal usages and Tmde^ 
standings — and any English constitutional lawyer who should compare 
the practical workings of the two in an exact and philosophical way would 
render a service to history and political science. 

However, one finds here and there in Greek constitutions provisions in- 
tended to secure certain laws from change. At Athens, for instance, 
there was a distinction between Laws (vo/xot) which required the approval 
of a committee called the Nomothetae, and Decrees {jrq<f>urfjuiTa\ passed 
by the Assembly alone, and any person proposing a decree inconsistent 
with a law was liable to an action {ypa<f>ri Trapavofnav) ioT having, so to 
speak, led the people into illegality. His conviction in this action carried 
with it a declaration of the invalidity of the decree. 



CHAP. XXXI DEVELOPMENT OF THE CONS^TITUTION 479 

is compared with its fire-new condition in 1789, prove 
to have felt the hand of time and change. 

Historical inquiry verifies this expectation. The 
Constitution of the United States, rigid though it be, 
has changed, has developed. It has developed in three 
ways to which I devote the three following chapters. 

It has been changed by Amendment. Certain pro- 
visions have been struck out of the original document 
of 1787-88 ; certain other, and more numerous, pro- 
visions have been added. This method needs little 
explanation, because it is open and direct. It resembles 
the method in which laws are changed in England, the 
difference being that whereas in England statutes are 
changed by the legislature, here in the United States 
the fundamental law is changed in a more roundabout 
fashion by the joint action of Congress and the States. 

It has been developed by Interpretation, that is, by 
the unfolding of the meaning implicitly contained in its 
necessarily brief terms ; or by the extension of its pro- 
visions to cases which they do not directly contemplate, 
but which their general spirit must be deemed to cover. 

It has been developed by Usage, that is, by the 
establishment of rules not inconsistent with its express 
provisions, but giving them a character, effect, and direc- 
tion which they would not have if they stood alone, and 
by which their working is materially modified. These 
rules are sometimes embodied in statutes passed by 
Congress and repealable by Congress. Sometimes they 
remain in the stage of a mere convention or understand- 
ing which has no legal authority, but which everybody 
knows and accepts. Whatever their form, they must 
not conflict with the letter of the Constitution, for if they 
do conflict with it, they will be deemed invalid whenever 
a question involving them comes before a court of law. 



48o THE NATIONAL GOVERNMENT parti 

It may be observed that of these three modes of 
change, the first is the most obvious, direct, and effective, 
but also the most diJBScult to apply, because it needs 
an agreement af many independent bodies which is 
rarely attainable. The second mode is less potent 
in its working, because an interpretation put on a 
provision may be recalled or modified by the same 
authority, viz. the courts of law (and especially the 
Supreme Federal Court), which has delivered it. But 
while a particular interpretation stands, it is as strong 
as the Constitution itself, being indeed incorporated 
therewith, and therefore stronger than anything which 
does not issue from the same ultimate source of power, 
the will of the people. The weakest, though the easiest 
and most frequent method, is the third. For, legisla- 
tion and custom are altogether subordinate to the Con- 
stitution, and can take effect only where the letter 
of the Constitution is silent, and where no authorized 
interpretation has extended the letter to an unspeci- 
fied case. But they work readily, quickly, freely ; and 
the developments to be ascribed to them are therefore as 
much larger in quantity than those due to the two other 
methods as they are inferior in weight and permanence. 

We shall perceive after examining these three sources 
of change not only that the Constitution as it now 
stands owes much to them, but that they are likely to 
modify it still further as time goes on. We shall find 
that, rigid as it is, it suffers constant qualification and 
deflection, and that while its words continue in the main 
the same, it has come to mean something different to 
the men of 1888 from what it meant to those of 1808, 
when it had been at work for twenty years, or even to 
those of 1858, when the fires of protracted controversy 
might be thought to have thrown a glare of light into 
every corner of its darkest chambers. 



CHAPTER XXXII 

THE AMENDMENT OF THE CONSTITUTION 

The men who sat in the Convention of 1787 were not 
sanguine enough, like some of the legislating sages of 
antiquity, or like such imperial codifiers as the Emperor 
Justinian, to suppose that their work could stand 
unaltered for all time to come. They provided (Art. v.) 
that "Congress, whenever two- thirds of both houses 
shall deem it necessary, shall propose amendments to 
this Constitution, or on the application of the legisla- 
tures of two-thirds of the several States, shall call a 
convention for proposing amendments, which, in either 
case, shall be valid to all intents and purposes as part of 
this Constitution when ratified by the legislatures of 
three-fourths of the several States, or by conventions in 
three-fourths thereof, as the one or the other mode may 
be prescribed by Congress." 

There are therefore two methods of framing and 
proposing amendments. 

(A) Congress may itself, by a two-thirds vote in each 
house, prepare and propose amendments. 

(B) The legislatures of two-thirds of the States may 
require Congress to summon a Constitutional Convention. 
Congress shall thereupon do so, having no option to 
refuse ; and the Convention when called shall draft 

VOL. I 2 I 



482 THE NATIONAL GOVERNMENT parti 

and submit amendments. No provision is made as to 
the election and composition of the Convention, matters 
which would therefore appear to be left to the discretion 
of Congress. 

There are also two methods of enacting amendments 
framed and proposed in either of the foregoing ways. It 
is left to Congress to prescribe one or other method as 
Congress may think fit. 

(X) The legislatures of three-fourths of the States 
may ratify any amendments submitted to them. 

(Y) Conventions may be called in the several States, 
and three-fourths of these conventions may ratify. 

On all the occasions on which the amending power 
has been exercised, method A has been employed for 
proposing and method X for ratifying — i.e. no drafting 
conventions of the whole Union or ratifying conventions 
in the several States have ever been summoned. The 
preference of the action of Congress and the State legis- 
latures may be ascribed to the fact that it has never 
been desired to remodel the whole Constitution, but 
only to make changes or additions on special points. 
Moreover, the procedure by National and State conven- 
tions might be slower, and would involve controversy 
over the method of electing those bodies. The consent 
of the President is not required to a constitutional 
amendment.^ A two- thirds majority in Congress can 
override his veto of a Bill, and at least that majority 
is needed to bring a constitutional amendment before 
the people. 

There is only one provision of the Constitution which 
cannot be changed by this process. It is that which 

^ The point was decided by the Supreme court in 1794 in the caae of 
Hollingsworth v. State of Vermont (3 Dall. 378) ; and the Senate came to 
the same conclusion in 1865. See Jameson on Constitutumal ConverUionif 
§660. 



CHAP, xxxii AMENDMENT OF THE CONSTITUTION 483 

secures to each and every State equal representation in 
one branch of the legislature. " No State without its 
consent shall be deprived of its equal suflFrage in the 
Senate " (Art. v.) It will be observed that this provision 
does not require unanimity on the part of the States to 
a change diminishing or extinguishing State representa- 
tion in the Senate, but merely gives any particular State 
proposed to be aflfected an absolute veto on the proposal. 
If a State were to consent to surrender its rights, and 
three-fourths of the whole number to concur, the resist- 
ance of the remaining fourth would not prevent the 
amendment from taking effect. 

Following President Lincoln, the Americans speak of 
the Union as indestructible; and the expression, **An 
indestructible Union of indestructible States," has been 
used by the Supreme court in a famous case.^ But 
looking at the Constitution simply as a legal document, 
one finds nothing in it to prevent the adoption of an 
amendment providing a method for dissolving the exist- 
ing Federal tie, whereupon such method would be applied 
so as to form new unions, or permit each State to become 
an absolutely sovereign and independent commonwealth. 
The power of the people of the United States appears 
competent to effect this, should it ever be desired, in a 
perfectly legal way, just as the British Parliament is 
legally competent to re-divide Great Britain into the 
sixteen or eighteen independent kingdoms which existed 
within the island in the eighth century. 

The amendments made by the above process (A + X) 
to the Constitution have been in all fifteen in number. 
These have been made on four occasions, and fall into 
four groups, two of which consist of one amendment 
each. The first group, including ten amendments made 

^ Texas v. White^ see ante, p. 429. 



484 THE NATIONAL GOVERNMENT parti 

immediately after the adoption of the Constitution, 
ought to be regarded as a supplement or postscript to it, 
rather than as changing it. They constitute what the 
Americans, following the English precedent, call a Bill 
of Eights, securing the individual citizen and the 
States against the encroachments of Federal power.^ 
The second and third groups, if a single amendment 
can be properly called a group (viz. amendments xL and 
xii.) are corrections of minor defects which had disclosed 
themselves in the working of the Constitution.* The 
fourth group is the only one which marked a poUtical 
crisis and registered a political victory. It comprises 
three amendments (xiii. xiv. xv.) which forbid slavery, 
define citizenship, secure the sufirage of citizens against 
attempts by States to discriminate to the injury of par- 
ticular classes, and extend Federal protection to those 
citizens who may suffer from the operation of certain 
kinds of unjust State laws. These three amendments 
are the outcome of the War of Secession, and were 
needed in order to confirm and secure for the future its 
results. The requisite majority of States was obtamed 
under conditions altogether abnormal, some of the 
lately conquered States ratifying while actually con- 
trolled by the northern armies, others as the price 
which they were obliged to pay for the re -admission to 
Congress of their senators and representatives.* The 

^ These ten amendments were proposed by the first Congress, having 
been framed by it out of 103 amendments suggested by various States, 
and were ratified by all the States but three, l^ey took effect in Decem- 
ber 1791. 

^ The eleventh amendment negatived a construction which the 
Supreme court had put upon its own judicial powers (see above, p. 315) ; 
the twelfth corrected a fault in the method of choosing the President 

^ The thirteenth amendment was proposed by Congress in Febnuiy 
1865, ratified and declared in force December 1865 ; the fourteenth was 
proposed by Congress June 1866, ratified and declared in force July 
1868 ; the fifteenth was proposed by Congress February 1869, ratified 



CHAP. XXXII AMENDMENT OF THE CONSTITUTION 485 

details belong to history: all we need here note is 
that these deep-reaching, but under the circumstances 
perhaps unavoidable, changes were carried through not 
by the free will of the peoples of three-fourths of the 
States, but under the pressure of a majority which had 
triumphed in a great war, and used its command of the 
military strength and Federal government of the Union 
to eflfect purposes deemed indispensable to the recon- 
struction of the Federal system.^ 

Many amendments to the Constitution have been 
at various times suggested to Congress by Presidents, 
or brought forward in Congress by members, but 
very few of these have ever obtained the requisite two- 
thirds vote of both Houses. In 1789, however, and 
again in 1807, amendments were passed by Congress 

and declared in force March 1870. The fourteenth amendment had given 
the States a strong motive for enfranchising the negroes by cutting down 
the representation in Congress of any State which excluded male in- 
habitants (being citizens of the United States) from the suffrage ; the 
fifteenth went further and forbade " race, colour, or previous condition of 
servitude," to be made a ground of exclusion. The grounds for this bold 
step were succinctly set forth by Senator Willey (of West Virginia) when 
he said that the suffrage was the only sure guarantee the negro could 
have in many parts of the country for the enjoyment of his civil rights ; 
that it would be a safer shield than law, and that it was required by the 
demands of justice, the principles of human liberty, and the spirit of 
Christian civilization. 

The effect of these three amendments was elaborately considered by 
the Supreme court (in 1872) in the so-called Slaughter-house Cases (16 
Wall 82), the effect of which is thus stated by Mr. Justice Miller : " With 
the exception of the specific provisions in the three amendments for the 
protection of the personal rights of the citizens and people of the United 
States, and the necessary restrictions upon the power of the States for that 
purpose, with the additions to the power of the general government to 
enforce those provisions, no substantial change has been made in the rela- 
tions of the State governments to the Federal government." — Address 
delivered before the University of Michigan, June 1887. 

1 But though military coercion influenced the adoption of the 
thirteenth amendment, while political coercion bore a large part in 
securing the adoption of the others, it must be remembered that some 
changes in the Constitution were an absolutely necessary corollary to the 
war which had just ended. 



486 THE NATIONAL GOVERNMENT parti 

and submitted to the States for which the requisite 
majority of three-fourths of the States was not obtamed ; 
and in February and March 1861 an amendment for- 
bidding the Constitution to be ever so amended as to 
authorize Congress to interfere with the "domestic 
institutions," including slavery, of any State, was passed 
in both Houses, but never submitted to the States, be- 
cause war broke out immediately afterwards. It would 
doubtless, had peace been preserved, have failed to 
obtain the acceptance of three-fourths of the States, and 
its effect could only have been to require those who 
might thereafter propose to amend the Constitution so 
as to deal with slavery, to propose also the repeal of this 
particular amendment itself.^ 

The moral of these facts is not far to seek 
Although it has long been the habit of the Americans 
to talk of their Constitution with almost superstitious 
reverence, there have often been times when leading 
statesmen, perhaps even political parties, would have 
materially altered it if they could have done so. There 
have, moreover, been some alterations suggested in it, 
which the impartial good sense of the wise would 
have approved, but which have never been submitted 
to the States, because it was known they could not 

^ The Qreek republics of antiquity sometimes placed some particuUr 
law under -a special sanction by denouncing the penalty of death on 
any one who should propose to repeal it. In such cases, the man who 
intended to repeal the law so sanctioned of course began by proposing 
the repeal of the law which imposed the penalty. So it would have been 
in this case : so it must always be. No sovereign body can limit its own 
powers. The British Parliament seems to have attempted to bind itself 
by providing in the Act of Union with Ireland (39 and 40 Qeorge IIL, 
c. 67) that the maintenance of the Protestant Episcopal Church as an 
Established Church in Ireland should be ''deemed an essential and 
fundamental part of the Union." That Church was, however, dis- 
established in 1869 with as much ease as though this provision had never 
existed. 



CHAP. XXXII AMENDMENT OF THE CONSTITUTION 487 

be carried by the requisite majority/ If, therefore, 
comparatively little use has been made of the provisions 
for amendment, this has been due, not solely to the 
excellence of the original instrument, but also to the 
difficulties which surround the process of change. 
Alterations, though perhaps not large alterations, have 
been needed, to cure admitted faults or to supply 
dangerous omissions, but the process has been so diffi- 
cult that it has never been successfully applied, except 
either to matters of minor consequence involving no 
party interests (Amendments xi. and xiL), or in the 
course of a revolutionary movement which had dislo- 
cated the Union itself (Amendments xiii. xiv. xv.) 

Why then has the regular procedure for amendment 
proved in practice so hard to apply ? 

Partly, of course, owing to the inherent disputa- 
tiousness and perversity (what the Americans call 
" cussedness ") of bodies of men. It is difficult to get 
two-thirds of two assemblies (the Houses of Congress) 
and three-fourths of thirty-eight commonwealths, each 
of which acts by two assemblies, for the State legislatures 

^ In the Forty-ninth Congress (1884-86^ no fewer than forty-seven 
propositions were introduced for the amendment of the Constitution, some 
of them of a sweeping, several of a rather complex, nature. (Some of these 
covered the same ground, so the total number of alterations proposed was 
less than forty-seven.) None seems to have been voted on by Congress ; 
and only five or six even deserved serious consideration. One at least, that 
enabling the President to veto items in an appropriation bill, would, in the 
opinion of most judicious statesmen, have effected a great improvement. 
I find among them the following proposals : To prohibit the sale of 
alcoholic liquors, to forbid polygamy, to confer the suffrage on women, 
•to vest the election of the President directly in the people, to elect repre- 
sentatives for three instead of two years, to choose senators by popular 
election, to empower Congress to limit the hours of labour, to empower 
Congress to pass uniform laws regarding marriage and divorce, to enable 
the people to elect certain Federal oflScers, to forbid Congress to pass any 
local private or special enactment, to forbid Congress to direct the payment 
of claims legaUy barred by lapse of time, to forbid the States to hire out 
the labour of prisoners. 



488 THE NATIONAL GOVERNMENT parti 

axe all double-chambered, to agree to the same practical 
proposition. Except under the pressure of urgent 
troubles, such as were those which procured the accept- 
ance of the Constitution itself in 1788, few persons or 
bodies will consent to forego objections of detail, perhaps 
in themselves reasonable, for the mere sake of agreeing 
to what others have accepted. They want to have what 
seems to themselves the very best, instead of a second 
best suggested by some one else. Now, bodies enjoy- 
ing so much legal independence as do the legisla- 
tures of the States, far from being disposed to defer to 
Congress or to one another, are more jealous, more 
suspicious, more vain and opinionated, than so many 
individuals. Nothing but a violent party spirit, seeking 
either a common party object or individual gain to flow 
from party success, makes them work together. 

If an amendment comes to the legislatures recom- 
mended by the general voice of their party, they will be 
quick to adopt it. But in that case it will encounter 
the hostility of the opposite party, and parties are in 
most of the Northern States usually pretty evenly bal- 
anced. It is seldom that a two-thirds majority in 
either House of Congress can be secured on a party 
issue ; and of course such majorities in both Houses, 
and a three-fourths majority of State legislatures on a 
party issue, are still less probable. Now, in a country 
pervaded by the spirit of party, most questions 
either are at starting, or soon become, controversial 
A change in the Constitution, however useful its 
ultimate consequences, is likely to be for the moment 
deemed more advantageous to one party than to the 
other, and this is enough to make the other party 
oppose it. Indeed, the mere fact that a proposal 
comes from one side, rouses the suspicion of the other. 



CHAP. XXXII AMENDMENT OF THE CONSTITUTION 489 

There is always that dilemma of which England has 
so often felt the evil consequences. If a measure 
of reform is immediately pressing, it becomes matter 
of party contention, it excites temper and passion. 
If it is not pressing, neither party, having other and 
nearer aims, cares to take it up and push it through.^ 
In America, a party amendment to the Constitution 
can very seldom be carried. A non-party amendment 
falls into the category of those things which, because 
they are everybody's business, are the business of 
nobody. 

It is evident when one considers the nature of a 
Rigid or Supreme constitution, that some method of 
altering it so as to make it conform to altered facts and 
ideas is indispensable. A European critic may remark 
that the American method has failed to answer the 
expectations formed of it. The beUef, he will say, of its 
authors was that while nothins: less than a pretty general 
agreement would juetify Iration, tJt a^^ement 
would exist when obvious omissions preventing its 
smooth working were discovered. But this has not 
come to pass. There have been long and fierce contro- 
versies over the construction of several points in the 
Constitution, over the right of Congress to spend money 
on internal improvements, to charter a national bank, 
to impose a protective tariff, above all, over the treat- 
ment of slavery in the Territories. But the method of 
amendment was not applied to any of these questions, 
because no general agreement could be reached upon 

^ In England, during many years, thinking men of both parties 
have been convinced that something ought to be done to re-construct the 
Upper Chamber, but since neither party had any direct gain to expect from 
such a reform, neither has troubled itself to undertake a confessedly difficult 
task. Yet in England changes in the Constitution are effected by the 
comparatively simple method of a statute. 



490 THE NATIONAL GOVERNMENT parti 

them, or indeed upon any but quite secondary matters. 
So the struggle over the interpretation of a docu- 
ment which it was found impossible to amend, passed 
from the law courts to the battle-field. Americans 
reply to such criticisms by observing that the power 
of amending the Constitution is one which cannot 
prudently be employed to conclude current political 
controversies, that if it were so used no constitution 
could be either rigid or reasonably permanent, that 
some latitude of construction is desirable, and that 
in the above-mentioned cases amendments excluding 
absolutely one or other of the constructions contended 
for would either have tied down the legislature too 
tightly or have hastened a probably inevitable conflict. 

Ought the process of change to be made easier ? say 
by requiring only a bare majority in Congress, and a 
two-thirds majority of States? American statesmen 
think not. A swift and easy method would not only 
weaken the sense of security which the rigid Constitu- 
tion now gives, but would increase the troubles of 
current politics by stimulating a majority in Congress 
to frequently submit amendments to the States. The 
habit of mending would turn into the habit of tinkering. 
There would be too little distinction between changes in 
the ordinary statute law, which require the agreement 
of majorities in the two Houses and the President, and 
changes in the more solemnly enacted fundamental law. 
And the rights of the States, upon which congressional 
legislation cannot now directly encroach, would be en- 
dangered. The French scheme, under which an absolute 
majority of the two Chambers, sitting together, can amend 
the Constitution ; or even the Swiss scheme, under 
which a bare majority of the voting citizens, coupled 
with a majority of the Cantons, can ratify constitutional 



CHAP. XXXII AMENDMENT OF THE CONSTITUTION 491 

changes drafted by the Chambers, in pursuance of a 
previous popular vote for the revision of the Consti- 
tution/ is considered by the Americans dangerously 
lax. The idea reigns that solidity and security are the 
most vital attributes of a fundamental law. 

From this there has followed another interesting 
result. Since modifications or developments are often 
needed, and since they can rarely be made by amend- 
ment, some other way of making them must be found. 
The ingenuity of lawyers has discovered one method in 
interpretation, while the dexterity of poUticians has in- 
vented a variety of devices whereby legislation may 
extend, or usage may modify, the express provisions of 
the apparently immoyable and inflexible instrument. 

^ See the Swiss Federal Constitatioii, Arts. 118-121. 



CHAPTER XXXIII 

THE INTERPRETATiaN OF THE CONSTITUTION 

The Constitution of England is contained in hundreds 
of volumes of statutes and reported cases ; the Constitu- 
tion of the United States (including the amendments) 
may be read through aloud in twenty-three minutes. 
It is about half as long as St. Paul's first Epistle 
to the Corinthians, and only one-fortieth paxt as long as 
the Irish Land Act of 1881. History knows few instru- 
ments which in so few words lay down equally moment- 
ous ml. on . ™t range of 'matters of the highest 
importance and complexity. The Convention of 1787 
were weU advised in making their draft short, because 
it was essential that the people should comprehend it, 
because fresh dijQFerences of view would have emerged 
the farther they had gone into details, and because the 
more one specifies, the more one has to specify and to 
attempt the impossible task of providing beforehand for 
all contingencies. These sages were therefore content 
to lay down a few general rules and principles, leaving 
some details to be filled in by congressional legislation, 
and foreseeing that for others it would be necessary to 
trust to interpretation. 

It is plain that the shorter a law is, the more general 
must its language be, and the greater therefore the need 
for interpretation. So too the greater the range of a law. 



CHAP. XXXIII INTERPRETATION OF CONSTITUTION 493 

and the more numerous and serious the cases which it 
governs, the more frequently will its meaning be can- 
vassed. There have been statutes dealing with private 
law, such as the Lex Aquilia at Rome and the Statute 
of Frauds in England, on which many volumes of 
commentaries have been written, and thousands of 
juristic and judicial constructions placed. Much more 
then must we expect to find great public and constitu- 
tional enactments subjected to the closest scrutiny in 
order to discover every shade of meaning which their 
words can be made to bear. Probably no writing 
except the New Testament, the Koran, the Pentateuch, 
and the Digest of the Emperor Justinian, has employed 
so much ingenuity and labour as the American Constitu- 
tion, in sifting, weighing, comparing, illustrating, twist- 
ing, and torturing its text. It resembles theological 
writings in this, that both, while taken to be immutable 
guides, have to be adapted to a constantly changing 
world, the one to political conditions which vary from 
year to year and never return to their former state, the 
other to new phases of thought and emotion, new beliefs 
in the realms of physical and ethical philosophy. There 
must, therefore, be a development in constitutional 
formulas, just as there is in theological. It will come, 
it cannot be averted, for it comes in virtue of a law 
of nature : all that men can do is to shut their eyes to 
it, and conceal the reality of change under the continued 
use of time-honoured phrases, trying to persuade them- 
selves that these phrases mean the same thing to their 
minds to-day as they meant generations or centuries 
ago. As a great living theologian says, " In a higher 
world it is otherwise; but here below to live is to 
change, and to be perfect is to have changed often. "^ 

^ Newman, Eua%j on Development, p. 39. 



494 THE NATIONAL GOVERNMENT parti 

The Constitution of the United States is so concise 
and so general in its terms, that even had America been 
as slowly moving a country as China, many questions 
must have arisen on the interpretation of the funda- 
mental law which would have modified its aspect. But 
America has been the most swiftly expanding of all 
countries. Hence the questions that have presented 
themselves have often related to matters which the 
framers of the Constitution could not have contemplated. 
Wiser than Justinian before them or Napoleon after 
them, they foresaw that their work would need to be 
elucidated by judicial commentary. But they were 
far from conjecturing the enormous strain to which 
some of their expressions would be subjected in the 
effort to apply them to new facts. 

I must not venture on any general account of the 
interpretation of the Constitution, nor attempt to set 
forth the rules of construction laid down by judges and 
commentators, for this is a vast matter and a matter for 
law books. All that this chapter has to do is to indi- 
cate, very generally, in what way and with what residts 
the Constitution has been expanded, developed, modi- 
fied, by interpretation ; and with that view there are 
three points that chiefly need discussion: (l) the 
authorities entitled to interpret the Constitution, (2) 
the main principles followed in determining whether or 
no the Constitution has granted certain powers, (3) the 
checks on possible abuses of the interpreting power. 

I. To whom does it belong to interpret the Con- 
stitution ? Any question arising in a legal proceeding as 
to the meaning and application of this fundamental law 
will evidently be settled by the courts of law. Every 
court is equally bound to pronounce and competent to 
pronoimce on such questions, a State court no less than 



CHAP. XXXIII INTERPRETATION OF CONSTITUTION 495 

a Federal court ; ^ but as all the more important questions 
are carried by appeal to the supreme Federal court, it is 
practically that court whose opinion determines them. 

Where the Federal courts have declared the meaning 
of a law, every one ought to accept and guide himself 
by their deliverance. But there are always questions of 
construction which have not been settled by the courts, 
some because they have not happened to arise in a law- 
suit, others because they are such as cannot arise in a 
law-suit. As regards such points, every authority, Federal 
or State, as well as every citizen, must be guided by the 
best view he or they can form of the true intent and 
meaning of the Constitution, taking, of course, the risk 
that this view may turn out to be wrong. 

There are also points of construction on which every 
court, following a well-established practice, will refuse 
to decide, because they are deemed to be of " a purely 
political nature," a vague description, but one which 
could be made more specific only by an enumeration of the 
cases which have settled the practice. These points are 
accordingly left to the discretion of the executive and 
legislative powers, each of which forms its view as 
to the matters falling within its sphere, and in acting 
on that view is entitled to the obedience of the citizens 
and of the States also.^ 

It is therefore an error to suppose that the judiciary 
is the only interpreter of the Constitution, for a large 
field is left open to the other authorities of the govern- 
ment, whose views need not coincide, so that a dispute 
between those authorities, although turning on the 
meaning of the Constitution, may be incapable of being 

1 See Chapter XXIV. arUe, 

^ Assuming, of course, that the matter is one which comes within 
the range of Federal competence. 



496 THE NA TIONAL GO VERNMENT part i 

settled by any legal proceeding.* This causes no great 
confusion, because the decision, whether of the political 
or the judicial authority, is conclusive so far as regards 
the particular controversy or matter passed upon. 

The above is the doctrine now generally accepted 
in America. But at one time the Presidents claimed 
the much wider right of being, except in questions 
of pure private law, generally and prima facie en- 
titled to interpret the Constitution for themselves, 
and to act on thieir own interpretation, even when 
it ran counter to that delivered by the Supreme 
court. Thus Jeflferson denounced the doctrine laid 
down in the famous judgment of Chief- Justice Marshall 
in the case of Marhury v. Madison ; ^ thus Jackson in- 
sisted that the Supreme court was mistaken in hold- 
ing that Congress had power to charter the United 
States bank, and that he, knowing better than the 
court did what the Constitution meant to permit, 
was entitled to attack the bank as an illegal insti- 
tution, and to veto a bill proposing to re-charter it.* 
Majorities in Congress have more than once claimed for 
themselves the same independence. But of late years 
both the executive and the legislature have practically 

1 As the court dismissed upon another point in the case the proceed- 
ings against Mr. Secretary Madison, the question whether MarshaU was 
right did not arise in a practical form. 

2 There was, however, nothing unconstitutional in the course which 
Jackson actually took in withdrawing the deposits from the United States 
Bank and in vetoing the biU for a re-charter. It is still generaUy ad- 
mitted that a President has the right in considering a measure coming to 
him from Congress to form his own judgment, not only as to its expedi- 
ency but as to its conformability to the Constitution. Judge Cooley 
observes to me : " If Jackson sincerely believed that the Constitution had 
been violated in the first and second charter, he was certainly not bound, 
when a third was proposed, to surrender his opinion in obedience to pre- 
cedent. The question of approving a new charter was political ; and he 
was entirely within the line of duty in refusing it for any reasons which, 
to his own mind, seemed sufficient." 



CHAP. XXXIII INTERPRETATION OF CONSTITUTION 497 

receded from the position which the language formerly 
used seemed to assert; while, on the other hand, the 
judiciary, by their tendency during the whole course 
of their history to support every exercise of power 
which they did not deem plainly unconstitutional, have 
left a wide field to those authorities. If the latter have 
not used this freedom to stretch the Constitution even 
more than they have done, it is not solely the courts of 
law, but also pubUc opinion and their own professional 
associations (most presidents, ministers, and congressional 
leaders having been lawyers) that have checked them. 

II. The Constitution has been expanded by con- 
struction in two ways. Powers have been exercised, 
sometimes by the President, more often by the legis- 
lature, in passing statutes, and the question has arisen 
whether the powers so exercised were rightfully exercised, 
i.e, were really contained in the Constitution. When 
the question was resolved in the aflfirmative by the 
court, the power has been henceforth recognized as a 
part of the Constitution, although, of course, liable to be 
subsequently denied by a reversal of the decision which 
estabHshed it. This is one way. The other is where 
some piece of State legislation alleged to contravene 
the Constitution has been judicially decided to con- 
travene it, and to be therefore invalid. The decision, in 
narrowing the limits of State authority, tends to widen 
the prohibitive authority of the Constitution, and con- 
firms it in a range and scope of action which was pre- 
viously doubtful. 

Questions of the above kinds sometimes arise as 
questions of Interpretation in the strict sense of the term, 
i.e. as questions of the meaning of a term or phrase 
which is so far ambiguous that it might be' taken either 
to cover or not to cover a case apparently contemplated 
VOL. I 2 k 



498 THE NATIONAL GOVERNMENT parti 

by the people when they enacted the Constitution. 
Sometimes they are rather questions to which we may 
apply the name of Construction, i.e. the case that has 
arisen is one apparently not contemplated by the enacters 
of the Constitution, or one which, though possibly con- 
templated, has for brevity's sake been omitted ; but the 
Constitution has nevertheless to be applied to its solu- 
tion. In the former case the enacting power has said 
something which bears, or is supposed to bear, on the 
matter, and the point to be determined is, what do the 
words mean ? In the latter it has not directly referred 
to the matter, and the question is. Can anything be 
gathered from its language which covers the point 
that has arisen, which establishes a principle large 
enough to reach and include an unmentioned case, 
indicating what the enacting authority would have said 
had the matter been present to its mind, or had it 
thought fit to enter on an enumeration of specific in- 
stances ? ^ As the Constitution is not only a well-drafted 
instrument with few ambiguities but also a short instru- 

^ For example, the question whether an agreement carried out be- 
tween a State and an individual by a legislative act of a State is a ** con- 
tract" within the meaning of the prohibition against impairing the 
obligation of a contract, is a question of interpretation proper, for it turns 
on the determination of the meaning of the term "contract.'* The 
question whether Congress had power to pass an act emancipating the 
slaves of persons aiding in a rebellion was a question of construction, 
because the case did not directly arise under any provision of the Consti- 
tution, and was apparently not contemplated by the framers thereof. It 
was a question which had to be solved by considering what the war 
powers contained in the Constitution might be taken to imply. The 
question whether the National government has power to issue treasury 
notes is also a question of construction, because, although this is a case 
which may possibly have been contemplated when the Constitution was 
enacted, it is to be determined by ascertaining whether the power ** to 
borrow money " covers this particular method of borrowing. There is 
no ambiguity abo.ut the word " borrow " ; the difl&culty is to pronounce 
which out of various methods of borrowing, some of which probably were 
contemplated, can be properly deemed, on a review of the whole iiniiTiriiv] 



CHAP. XXXIII INTERPRETATION OF CONSTITUTION 499 

ment which speaks in very general terms, mere interpre- 
tation has been far less difficult than construction.^ 
It is through the latter chiefly that the Constitution 
has been, and still continues to be, developed and ex- 
panded. The nature of these expansions will appear 
from the nature of the Federal government. It is a 
government of delegated and specified powers. The 
people have entrusted to it, not the plenitude of 
their own authority but certain enumerated functions, 
and its lawful action is limited to these functions. 
Hence, when the Federal executive does an act, or the 
Federal legislature passes a law, the question arises — Is 
the power to do this act or pass this law one of the 
powers which the people have by the Constitution dele- 
gated to their agents ? The power may never have 
been exerted before. It may not be found expressed, 
in so many words, in the Constitution. Nevertheless 
it may, upon the true construction of that instrument, 
taking one clause with another, be held to be therein 
contained. 

Now the doctrines laid down by Chief-Justice Mar- 
shall, and on which the courts have constantly since pro- 
ceeded, may be summed up in two propositions. 

1, Every power alleged to be vested in the National 
government, or any organ thereof, must be affirmatively 
shown to have been granted. There is no presumption 

attributes and functions of the National government, to be included 
within the borrowing power. 

As to the provision restraining States from passing laws impairing the 
obligation of a contract, see note at the end of this volume on the case of 
Dartmouth College v. Woodward. 

^ It is worth remarking that as the Constitution is deemed to proceed 
from the People who enacted it, not from the Convention who drafted it, 
it is regarded for the purposes of interpretation as being the work not of 
a group of lawyers but of the people themselves. For a useful summary 
of some of the general rules of constitutional interpretation, see Patterson's 
Federal Restramts on State Action^ pp. 216-217. 



Soo THE NA TIONAL GO VERNMENT part i 

in favour of the existence of a power ; on the contrary, 
the burden of proof lies on those who assert its existence, 
to point out something in the Constitution which, either 
expressly or by necessary implication, confers it. Just 
as an agent, claiming to act on behalf of his principal, 
must make out by positive evidence that his principal 
gave him the authority he relies on; so Congress, or 
those who rely on one of its statutes, are bound to show 
that the people have authorized the legislature to pass 
the statute. The search for the power will be conducted 
in a spirit of strict exactitude, and if there be found in 
the Constitution nothing which directly or impliedly 
conveys it, then whatever the executive or legislature 
of the National government, or both of them together, 
may have done in the persuasion of its existence, must 
be deemed null and void, like the act of any other 
unauthorized agent. ^ 

2. When once the grant of a power by the people 
to the National government has been established, that 
power will be construed broadly. The strictness applied 
in determining its existence gives place to liberality in 
supporting its application. The people — so Marshall 
and his successors have argued — when they confer a 
power, must be deemed to confer a wide discretion as 
to the means whereby it is to be used in their service. 
For their main object is that it should be used vigorously 
and wisely, which it cannot be if the choice of methods 

^ For instance, several years ago a person summoned as a witness 
before a committee of the House of Eepresentatives was imprisoned by 
order of the House for refusing to answer certain questions put to him. 
He sued the sergeant -at -arms for false imprisonment, and recovered 
damages, the Supreme court holding that as the Constitution could not 
be shown to have conferred on either House of Congress any power to 
punish for contempt, that power (though frequently theretofore exercised) 
did not exist, and the order of the House therefore constituted no defence 
for the sergeant's act {KUboum v. Thompsonj 103 United States, 168). 



CHAP. XXXIII INTERPRETATION OF CONSTITUTION 501 

is narrowly restricted; and while the people may 
well be chary in delegating powers to their agents, 
they must be presumed, when they do grant these 
powers, to grant them with confidence in the agents' 
judgment, allowing all that freedom in using one means 
or another to attain the desired end which is needed to 
ensure success.^ This, which would in any case be the 
common-sense view, is fortified by the language of the 
Constitution, which authorizes Congress "to make all 
laws which shall be necessary and proper for carrying 
into execution the foregoing powers, and all other 
powers vested by this Constitution in the Government 
of the United States, or in any department or office 
thereof The sovereignty of the National government, 
therefore, " though limited to specified objects, is plenary 
as to those objects''^ and supreme in its sphere. Con- 
gress, which cannot go one step beyond the circle of 
action which the Constitution has traced for it, may 
within that circle choose any means which it deems apt 
for executing its powers, and is in its choice of means 
subject to no review by the courts in their function of 
interpreters, because the people have made their repre- 
sentatives the sole and absolute judges of the mode in 
which the granted powers shall be employed. This 
doctrine of implied powers, and the interpretation of 
the words " necessary and proper," were for many years 
a theme of bitter and incessant controversy among 
American lawyers and publicists.* The history of the 
United States is in a large measure a history of the 

1 For instance, Congress having power to declare war, has power to 
prosecute it by aU means necessary for success, and to acquire territory 
either by conquest or treaty. Having power to borrow money, Congress 
may, if it thinks fit, issue treasury notes, and may make them legal tender. 

2 See Gibbons v. Ogden, 9 Wheat, p. 1 nqq^ judgment of MarshaU, C.-J. 
^ *' The powers of the government are limited, and its limits are not 



502 THE NATIONAL GOVERNMENT part i 

arguments which sought to enlarge or restrict its im- 
port. One school of statesmen urged that a lax con- 
struction would practically leave the States at the 
mercy of the National government, and remove those 
checks on the latter which the Constitution was de- 
signed to create ; while the very fact that some powers 
were specifically granted must be taken to import that 
those not specified were withheld, according to the old 
maxim expressio unius exclusio alterius, which Lord 
Bacon concisely explains by saying, " as exception 
strengthens the force of a law in cases not excepted, 
so enumeration weakens it in cases not enumerated." 
It was replied by the opposite school that to limit the 
powers of the government to those expressly set forth 
in the Constitution would render that instrument unfit 
to serve the purposes of a growing and changing nation, 

to be transcended. But the sound construction of the Constitution miist 
aUow to the national legislature that discretion with respect to the means 
by which the powers it confers are to be carried into execution, which 
will enable that body to perform the high duties assigned to it in the 
manner most beneficial to the people. Let the end be legitimate, let it 
be within the scope of the Constitution, and all means which are appro- 
priate, which are plainly adapted to that end, which are not prohibited 
but consistent with the letter and spirit of the Constitution, are constitn- 
tionaU' — Marshall, C.-J., in APCnlloch v. Maryland (4 Wheat 316). This 
is really a working-out of one of the points of Hamilton's famous argu- 
ment in favour of the constitutionality of a United States bank : " Every 
power vested in a government is in its nature sovereign, and includes by 
force of the term a right to employ all the means requisite and fairly 
applicable to the attainment of the ends of such power, and which are 
not precluded by restrictions and exceptions specified in the Constitution." 
— Works (Lodge's ed.), vol. iiL p. 181. 

Judge Hare sums up the matter by saying, " Congress is sovereign as 
regards the objects and within the limits of the Constitution. It may 
use all proper and suitable means for carrying the powers conferred by 
the Constitution into effect. The means best suited at one time may be 
inadequate at another ; hence the need for vesting a large discretion in 
Congress. ... * Necessary and proper ' are therefore, as regards legisla- 
tion, nearly if not quite synonymous, that being * necessary ' w^hich is 
suited to the object and calculated to attain the end in view." — Lectures 
on Constitutional LaWy p. 78. 



CHAP. XXXIII INTERPRETA TION OF CONSTITUTION 503 

and would, by leaving men no legal means of attaining 
necessary but originally uncontemplated aims, provoke 
revolution and work the destruction of the Constitution 
itself.^ 

This latter contention derived much support from 
the fact that there were certain powers that had not 
been mentioned in the Constitution, but which were so 
obviously incident to a national government that they 
must be deemed to be raised by implication.^ For 
instance, the only offences which Congress is expressly 
empowered to punish are treason, the counterfeiting of 
the coin or securities of the government, and piracies 
and other offences against the law of nations. But it 
was very early held that the power to declare other acts 
to be offences against the United States, and punish 
them as such, existed as a necessary appendage to 
various general powers. So the power to regulate 
commerce covered the power to punish offences ob- 
structing commerce ; the power to manage the post- 
office included the right to fix penalties on the theft of 
letters ; and, in fact, a whole mass of criminal law grew 
up as a sanction to the civil laws which Congress had 
been directed to pass. 

The three lines along which this development of the 
implied powers of the government has chiefly progressed, 
have been those marked out by the three express powers 
of taxing and borrowing money, of regulating commerce, 

^ See the philosophical remarks of Story, J., in Martin v. Hunter^s 
Lessee (1 Wheat p. 304 sqq.) 

2 Stress was also laid on the fact that whereas the Articles of 
Confederation of 1781 contained (Art ii.) the expression, "Each State 
retains every power and jurisdiction and right not expressly delegated 
to the United States in Congress assembled," the Constitution merely 
says (Amendment x.), " The powers not granted to the United States are 
reserved to the States respectively or to the people," omitting the word 
" expressly." See the text of the Articles in the Appendix to this volume. 



S04 THE NATIONAL GOVERNMENT parti 

and of carrying on war. Each has produced a progeny 
of subsidiary powers, some of which have in their turn 
been surrounded by an unexpected ojffspring. Thus 
from the taxing and borrowing powers there sprang 
the powers to charter a national bank and exempt its 
branches and its notes from taxation by a State (a 
serious restriction on State authority), to create a system 
of custom-houses and revenue cutters, to establish a 
tariff for the protection of native industry. Thus the 
regulation of commerce has been construed to include 
legislation regarding every kind of transportation of 
goods and passengers, whether from abroad or from one 
State to another, regarding navigation, maritime and 
internal pilotage, maritime contracts, etc., together 
with the control of all navigable waters,^ the construc- 
tion of all public works helpful to commerce between 
States or with foreign countries, the power to prohibit 
immigration, and finally a power to establish a railway 
commission and control all inter-State traffic* The war 
power proved itself even more elastic. The executive 
and the majority in Congress found themselves during 
the War of Secession obliged to stretch this power to 

^ Navigable rivers and lakes wholly within the limits of a State, and 
not accessible from without it, are under the authority of that State. 

^ The case of Gibbons v. Ogden supplies an interesting iUustration of 
the way in which this doctrine of implied powers works itself out The 
State of New York had, in order to reward Fulton and Livingston for 
their services in introducing steamboats, passed a statute giving them an 
exclusive right of navigating the Hudson river with steamers. A case 
having arisen in which this statute was invoked, it was aUeged that the 
statute was invalid, because inconsistent with an Act passed by Congrees. 
The question followed, Was Congress entitled to pass an Act dealing with 
the navigation of the Hudson ? and it was held that the power to r^olate 
commerce granted to Congress by the Constitution implied a power to 
legislate for navigation on such rivers as the Hudson, and that Congrefis 
having exercised that power, the action of the States on the subject was 
necessarily excluded By this decision a vast field of l^islation wafl 
secured to Congress and closed to the States. 



CHAP. XXXIII INTERPRETATION OF CONSTITUTION 505 

cover many acts trenching on the ordinary rights of the 
States and of individuals, till there ensued something 
approaching a suspension of constitutional guarantees 
in favour of the central government. 

The courts have occasionally gone even further afield, 
and have professed to deduce certain powers of the legis- 
lature from the sovereignty inherent in the National 
government. In its last decision on the legal tender 
question, a majority of the Supreme court seems to have 
placed upon this ground, though with special reference 
to the section enabling Congress to borrow money, its 
afl&rmance of that competence of Congress to declare 
paper money a legal tender for debts, which the earlier 
decision of 1871 had referred to the war power. This 
position evoked a controversy of wide scope, for the 
question what sovereignty involves is evidently at least 
as much a question of political as of legal science, and 
may be pushed to great lengths upon considerations 
with which law proper has little to do. 

The above-mentioned instances of development have 
been worked out by the courts of law. But others are 
due to the action of the executive, or of the executive 
and Congress conjointly. Thus, in 1803, President 
Jefferson negotiated and completed the purchase of 
Louisiana, the whole vast possessions of France beyond 
the Mississippi. He believed himself to be exceeding 
any powers which the Constitution conferred; and 
desired to have an amendment to it passed, in order 
to validate his act. But Congress and the people did 
not share his scruples, and the approval of the legisla- 
ture was deemed sufficient ratification for a step . of 
transcendent importance, which no provision of the 
Constitution bore upon. In 1807 and 1808 Congress 
laid, by two statutes, an embargo on all shipping in 



5o6 THE NA TIONAL GO VERNMENT part i 

United States ports, thereby practically destroying the 
lucrative carrying trade of the New England States. 
Some of these States declared the Act unconstitutional, 
arguing that a power to regulate commerce was not a 
power to annihilate it, and their courts held it to be 
void. Congress, however, persisted for a year, and the 
Act, on which the Supreme court never formally pro- 
nounced, has been generally deemed within the Constitu- 
tion, though Justice Story (who had warmly opposed it 
when he sat in Congress) remarks that it went to the 
extreme verge. More startling, and more far-reachmg 
in their consequences, were the assumptions of Federal 
authority made during the War of Secession by the 
executive and confirmed, some expressly, some tacitly, by 
Congress and the people.^ It was only a few of these 
that came before the courts, and the courts, in some 
instances, disapproved them. But the executive con- 
tinued to exert this extraordinary authority. Appeals 
made to the letter of the Constitution by the minority 
were discredited by the fact that they were made by 
persons sympathizing with the Secessionists who were 
seeking to destroy it. So many extreme things were 
done under the pressure of necessity that something 

^ See Judge Cooley*s History of Michigan^ p. 353. The same emi- 
nent authority observes to me : " The President suspended the writ of 
habeas corpus. The courts held this action unconstitutional (it was 
subsequently confirmed by Congress), but he did not at once deem it 
safe to obey their judgment Military commissioners, with the approval 
of the War Department and the President, condemned men to punishment 
for treason, but the courts released them, holding that the guaranties of 
liberty in the Constitution were as obligatory in war as in peace, and 
should be obeyed by all citizens, and all departments, and officers of 
government {Milligan*s case^ 4 Wall. 1). The courts held closely to the 
Constitution, but as happens in every civil war, a great many wrongs 
were done in the exercise of the war power for which no redress, or none 
that was adequate, could possibly be had." Inter arma silent leges must 
be always to some extent true, even under a Constitution like that of 
the United States. 



CHAP. XXXIII INTERPRETA TION OF CONSTITUTION 507 

less than these extreme things came to be accepted as 
a reasonable and moderate compromise.^ 

The best way to give an adequate notion of the 
extent to which the outlines of the Constitution have 
been filled up by interpretation and construction, would 
be to take some of its more important sections and 
enumerate the decisions upon them and the doctrines 
established by those decisions. This process would, 
however, be irksome to any but a legal reader, and the 
legal reader may do it more agreeably for himself by 
consulting one of the annotated editions of the Con- 
stitution.^ He will there find that upon some pro- 
visions such as Art. i. § 8 (powers of Congress), Art. 
i. § 10 (powers denied to the States), Art. iii. § 2 (extent 
of judicial power), there has sprung up a perfect forest 
of judicial constructions, working out the meaning and 
application of the few and apparently simple words of 
the original document into a variety of unforeseen results. 
The same thing has more or less befallen nearly every 
section of the Constitution and of the fifteen amendments. 
The process shows no signs of stopping, nor can it, for 
the new conditions of economics and politics bring up 
new problems for solution. But the most important 
work was that done during the first half century, and 
especially by Chief- Justice Marshall during his long 
tenure of the presidency of the Supreme court (1801- 
1835). It is scarcely an exaggeration to call him, 
as an eminent American jurist has done, a second 
maker of the Constitution. I will not borrow the 
phrase which said of Augustus that he found Kome of 

^ Such as the suspension of the writ of Jiabeas corjnis, the emancipa- 
tion of the slaves of persons aiding in rebellion, the suspension of the statute 
of limitations, the practical extinction of State banks by increased taxation 
laid on them under the general taxing power. 

2 Such as Desty^s clear and compendious Federal Constitution Annotated. 



5o8 THE NATIONAL GOVERNMENT parti 

brick and left it of marble, because Marshall's function 
was not to change but to develop. The Constitution 
was, except of course as regards the political scheme of 
national government, which was already well established, 
rather a ground plan than a city. It was, if I may 
pursue the metaphor, much what the site of Washington 
was at the beginning of this century, a symmetrical 
ground plan for a great city, but with only some tall 
edifices standing here and there among fields and woods. 
Marshall left it what Washington has now become, a 
splendid and commodious capital within whose ample 
bounds there are still some vacant spaces and some mean 
dweUings, but which, built up and beautified as it has 
been by the taste and wealth of its rapidly growing 
population, is worthy to be the centre of a mighty nation. 
Marshall was, of course, only one among seven judges, 
but his majestic intellect and the elevation of his char- 
acter gave him such an ascendency, that he found 
himself only once in a minority on any constitutional 
question.^ His work of building up and working out 
the Constitution was accomplished not so much by the 
decisions he gave as by the judgments in which he 
expounded the principles of these decisions, judgments 
which for their philosophical breadth, the luminous exact- 
ness of their reasoning, and the fine political sense 
which pervades them, have never been surpassed and 
rarely equalled by the most famous jurists of modem 
Europe or of ancient Rome. Marshall did not forget 
the duty of a judge to decide nothing more than the 

^ In that one case {Ogden v. Sanders) there was a bare majority against 
him, and professional opinion now approves the view which he took. See 
an extremely interesting address delivered to the American Bar Associa- 
tion in 1879 by Mr. Edward J, Phelps, who observes that when Mar- 
shall became Chief-Justice only two decisions on constitutional law had 
been pronounced by the court. Between that time and his death fifty- 
one were given. 



CHAP. XXXIII INTERPRETATION OF CONSTITUTION 509 

suit before him requires, but he was wont to set forth 
the grounds of his decision in such a way as to show 
how they would fall to be applied in cases that had not 
yet arisen. He grasped with extraordinary force and 
clearness the cardinal idea that the creation of a national 
government implies the grant of all such subsidiary 
powers as are requisite to the eflfectuation of its main 
powers and purposes, but he developed and applied this 
idea with so much prudence and sobriety, never treading 
on purely political ground, never indulging the tempta- 
tion to theorize, but content to follow out as a lawyer 
the consequences of legal principles, that the Constitution 
seemed not so much to rise under his hands to its full 
stature, as to be gradually unveiled by him till it stood 
revealed in the harmonious perfection of the form which 
its framers had designed. That admirable flexibility 
and capacity for growth which characterize it beyond 
all other rigid or supreme constitutions, is largely due to 
him, yet not more to his courage than to his caution.^ 

We now come to the third question : How is the 
interpreting authority restrained ? If the American 
Constitution is capable of being so developed by this 
expansive interpretation, what security do its written 
terms offer to the people and to the States? What 
becomes of the special value claimed for Kigid constitu- 
tions that they preserve the frame of government unim- 
paired in its essential merits, that they restrain the 
excesses of a transient majority, and (in Federations) 
the aggressions of a central authority ? 

1 Had the Supreme court been in those days possessed by the same 
spirit of strictness and literality which the Judicial Committee of the 
British Privy Council has recently applied to the construction of the 
British North America Act of 1867 (the Act which creates the Consti- 
tution of the Canadian Federation), the United States Constitution would 
never have grown to be what it now is. 



5IO THE NATIONAL GOVERNMENT parti 

The answer is two- fold. In the first place, the inter- 
preting authority is, in questions not distinctly political, 
difierent from the legislature and from the executive. 
There is therefore a probability that it will disagree 
with either of them when they attempt to transgress the 
Constitution, and will decline to stretch the law so as 
to sanction encroachments those authorities may have 
attempted. The fact that the interpreting authority is 
nowise amenable to the other two, and is composed of 
lawyers, imbued with professional habits, strengthens 
this probability. In point of fact, there have been few 
cases, and those chiefly cases of urgency during the war, 
in which the judiciary has been even accused of lending 
itself to the designs of the other organs of government. 
The period when extensive interpretation was most 
active (1800-1835) was also the period when the party 
opposed to a strong central government commanded 
Congress and the executive, and so far from approving 
the course the court took, the dominant party then 
often complained of it. 

In the second place, there stands above and behind 
the legislature, the executive, and the judiciary, another 
power, that of public opinion. The President, Congress, 
and the courts are all, the two former directly, the latter 
practically, amenable to the people, and anxious to be 
in harmony with the general current of its sentiment. 
If the people approve the way in which these authorities 
are interpreting and using the Constitution, they go on ; 
if the people disapprove, they pause, or at least slacken 
their pace. Generally the people have approved of 
such action by the President or Congress as has seemed 
justified by the needs of the time, even though it 
may have gone beyond the letter of the Constitution : 
generally they have approved the conduct of the courts 



CHAP. XXXIII INTERPRETA TION OF CONSTITUTION 5 1 1 

whose legal interpretation has upheld such legislative or 
executive action. Public opinion sanctioned the pur- 
chase of Louisiana, and the still bolder action of the 
executive in the Secession War. It approved the 
Missouri compromise of 1820, which the Supreme court 
thirty-seven years afterwards declared to have been in 
excess of the powers of Congress. But it disapproved 
the Alien and Sedition laws of 1798, and although these 
statutes were never pronounced unconstitutional by the 
courts, this popular censure has prevented any similar 
legislation since that time.^ The people have, of course, 
much less exact notions of the Constitution than the 
legal profession or the courts. But while they generally 
desire to see the powers of the government so far 
expanded as to enable it to meet the exigencies of the 
moment, they are sufficiently attached to its general 
doctrines, they sufficiently prize the protection it aflfords 
them against their own impulses, to censure any inter- 
pretation which palpably departs from the old lines. 
And their censure is, of course, still more severe if the 
court seems to be acting at the bidding of a party. 

A singular result of the importance of constitutional 
interpretation in the American government may be here 
referred to. It is this, that the United States legislature 
has been very largely occupied in purely legal dis- 
cussions. When it is proposed to legislate on a subject 
which has been heretofore little dealt with, the opponents 
of a measure have two lines of defence. They may, 
as Englishmen would in a like case, argue that the 
measure is inexpedient. But they may also, which 
Englishmen cannot, argue that it is unconstitutional, i,e, 
illegal, because transcending the powers of Congress. 

1 So it disapproved strongly, in the northern States, of the judgments 
delivered by the majority of the Supreme court in the Dred Scott case. 



512 THE NATIONAL GOVERNMENT parti 

This is a question fit to be raised in Congress, not only 
as regards matters with which, as being purely political, 
the courts of law wiU refuse to interfere, but as regards 
all other matters also, because since a decision on the 
constitutionality of a statute can never be obtained 
from the judges by anticipation, the legislature ought to 
consider whether they are acting within their com- 
petence. And it is a question on which a stronger 
case can often be made, and made with less exertion, 
than on the issue whether the measure be substantially 
expedient. Hence it is usually put in the fore-front of 
the battle, and argued with great vigour and acumen by 
leaders who are probably more ingenious as lawyers than 
they are far-sighted as statesmen. 

A further consequence of this habit is pointed out 
by one of the most thoughtful among American constitu- 
tional writers. Legal issues are apt to dwarf and obscure 
the more substantially important issues of principle and 
policy, distracting from these latter the attention of the 
nation as well as the skill of congressional debaters. 

" The English legislature," says Judge Hare, " is free 
to follow any course that will promote the welfare of the 
State, and the inquiry is not, * Has Parliament power to 
pass the Act ? * but, * Is it consistent with principle, and 
such as the circumstances demand?' These are the 
material points, and if the public mind is satisfied as to 
them there is no further controversy. In the United 
States, on the other hand, the question primarily is one 
of power, and in the refined and subtle discussion which 
ensues, right is too often lost sight of or treated as if it 
were synonymous with might. It is taken for granted 
that what the Constitution permits it also approves, and 
that measures which are legal cannot be contrary to 
morals." ^ 

^ Ltduru on ConitittUumal Law^ p. 135. 



CHAP. XXXIII INTERPRETA TION OF CONSTITUTION 5 1 3 

The interpretation of the Constitution has at times 
become so momentous as to furnish a basis for the for- 
mation of political parties ; and the existence of parties 
divided upon such questions has of course stimulated 
the interest with which points of legal interpretation 
have been watched and canvassed. Soon after the 
formation of the National government in 1789 two 
parties grew up, one advocating a strong central 
authority, the other championing the rights of the 
States. Of these parties the former naturally came to 
insist on a liberal, an expansive, perhaps a lax construc- 
tion of the words of the Constitution, because the more 
wide is the meaning placed upon its grant of powers, so 
much the wider are those powers themselves. The 
latter party, on the other hand, was acting in protection 
both of the States and of the individual citizen against 
the central government, when it limited by a strict and 
narrow interpretation of the fundamental instrument the 
powers which that instrument conveyed. The dis- 
tinction which began in those early days has never 
since vanished. There has always been a party pro- 
fessing itself disposed to favour the central government, 
and therefore a party of broad construction. There has 
always been a party claiming that it aimed at protecting 
the rights of the States, and therefore a . party of strict 
construction. Some writers have gone so far as to deem 
these diflferent views of interpretation to be the found- 
ation of all the political parties that have divided 
America. This view, however, inverts the facts. It 
is not because men have differed in their reading of 
the Constitution that they have advocated or opposed 
an extension of Federal powers ; it is their attitude on 
this substantial issue that has determined their attitude 
on the verbal one. Moreover, the two great parties 

VOL. I 2 L 



514 THE NATIONAL GOVERNMENT parti 

have several times changed sides on the very question 
of interpretation. The purchase of Louisiana and the 
Embargo acts were the work of the Strict Construc- 
tionists, while it was the Loose Constructionist party 
which protested against the latter measure, and which, 
at the Hartford Convention of 1814, advanced doctrines 
of State rights almost amounting to those subsequently 
asserted by South Carolina in 1832 and by the Seces- 
sionists of 1861. Parties in America, as in most 
countries, have followed their temporary interest ; and 
if that interest happened to diflfer from some traditional 
party doctrine, they have explained the latter away. 
Whenever there has been a serious party conflict, it has 
been in reality a conflict over some living and practical 
issue, and only in form a debate upon canons of legal 
interpretation. What is remarkable, though natural 
enough in a country governed by a written instrument, 
is that every controversy has got involved with questions 
of constitutional construction. When it was proposed to 
exert some power of Congress, as for instance to charter 
a national bank, to grant money for internal improve- 
ments, to enact a protective tariff', the opponents of these 
schemes could plausibly argue, and therefore of course did 
argue, that they were unconstitutional. So any sug- 
gested interference with slavery in States or Territories 
was immediately declared to violate the State rights 
which the Constitution guaranteed. Thus every serious 
question came to be fought as a constitutional questioa. 
But as regards most questions, and certainly as regards 
the great majority of the party combatants, men did 
not attack or defend a proposal because they held it 
legally unsound or sound on the true construction of 
the Constitution, but alleged it to be constitutionally 
wrong or right because they thought the welfare of the 



CHAP. XXXIII INTERPRET A TION OF CONSTITUTION 5 1 5 

country, or at least their party interests, to be involved. 
Constitutional interpretation was a pretext rather than 
a cause, a matter of form rather than of substance. 

The results were both good and evil. They were 
good in so far as they made both parties profess them- 
selves defenders of the Constitution, zealous only that it 
should be interpreted aright; as they familiarized the 
people with its provisions, and made them vigilant critics 
of every legislative or executive act which could aflfect 
its working. They were evil in distracting public atten- 
tion from real problems to the legal aspect of those 
problems, and in cultivating a habit of casuistty which 
threatened the integrity of the Constitution itself. 

Since the Civil War there has been much less of this 
casuistry because there have been fewer occasions for it, 
the Broad Construction view of the Constitution having 
practically prevailed — prevailed so far that the Supreme 
court now holds that the power of Congress to make 
paper money legal tender is incident to the sovereignty 
of the National government, and that a Democratic 
House of Kepresentatives passes a bill giving a Federal 
commission vast powers over all the railways which pass 
through more than one State. There is still a party in- 
clined to strict construction, but the strictness which it 
upholds would have been deemed lax by the Broad Con- 
structionists of thirty years ago. The interpretation 
which has thus stretched the Constitution to cover 
powers once undreamt of, may be deemed a dangerous 
resource. But it must be remembered that even the 
constitutions we call rigid must make their choice 
between being bent or being broken. The Americans 
have more than once bent their Constitution in order 
that they might not be forced to break it. 



CHAPTEE XXXIV 

THE DEVELOPMENT OF THE CONSTITUTION BY USAGE 

There is yet another way in which the Constitution has 
been developed. This is by laying down rules on 
matters which are within its general scope, but have 
not been dealt with by its words, by the creation of 
machinery which it has not provided for the attainment 
of objects it contemplates, or, to vary the metaphor, by 
ploughing or planting ground which though included 
within the boundaries of the Constitution, was left 
waste and untilled by those who drew up the original 
instrument. 

Although the Constitution is curiously minute upon 
some comparatively small points, such as the qualifica- 
tions of members of Congress and the ofiicial record of 
their votes, it passes over in silence many branches of 
political action, many details essential to every govern- 
ment. Some may have been forgotten, but some were 
purposely omitted, because the Convention could not 
agree upon them, or because they would have provoked 
opposition in the ratifying conventions, or because they 
were thought unsuited to a document which it was 
desirable to draft concisely and to preserve as far as 
possible unaltered. This was wise and indeed necessary, 
but it threw a great responsibility upon those who had 



CHAP. XXXIV DEVELOPMENT BY USAGE 517 

to work the government which the Constitution created. 
They found nothing within the foUr comers of the 
instrument to guide them on points whose gravity was 
perceived as soon as they had to be settled in practice. 
IV^any of such points could not be dealt with by inter- 
pretation or construction, however liberally extensive it 
xnight be, because there was nothing in the words of the 
Constitution from which such construction could start, 
and because they weref in some instances matters which, 
though important, could not be based upon principle, 
but must be settled by an arbitrary determination. 

Their settlement, which began with the first Con- 
gress, has been effected in two ways, by Congressional 
legislation and by usage. 

Congress was empowered by the Constitution to 
pass statutes on certain prescribed topics. On many 
other topics not specially named, but within its general 
powers, statutes were evidently needed. For instance, 
the whole subject of Federal taxation, direct and in- 
direct, the establishment of Federal courts, inferior to 
the Supreme court, and the assignment of particular 
kinds and degrees of jurisdiction to each class of courts, 
the organization of the civil, military, and naval services 
of the country, the administration of Indian affairs 
and of the Territories, the rules to be observed in 
the elections of Presidents and senators, these and 
many other matters of high import are regulated by 
statutes, statutes which Congress can change as English 
statutes are changed by Parliament, but which, in 
their main features, have been but little changed 
since their first enactment. Although such statutes 
cannot be called parts of the Constitution in the same 
sense as the interpretations and constructions judicially 
placed upon it, for these latter have (subject to the 



5i8 THE NATIONAL GOVERNMENT parti 

possibility pf their reversal) become practically incor- 
porated with its original text, still they have given to 
its working a character and direction which must be 
borne in mind in discussing it, and which have, in some 
instances, produced results opposed to the ideas of 
its framers. To take the latest instance, the pass- 
ing of the Inter-State Commerce Act, which regulates 
all the greater railways over the whole United States, 
is an assertion of Federal authority over numerous and 
powerful corporations chartered by and serving the 
various States, which gives a new aspect and significance 
to the clause in the Constitution empowering Congress 
to regulate commerce. Legal interpretation held that 
clause to be sufficiently wide to enable Congress to 
legislate on inter -State railways ; but when Congress 
actually exerted its power in enacting this statute a 
further step, and a long one, was tstken towards bringing 
the organs of transportation under national controL^ 
Legislation, therefore, though it cannot in strictness 
enlarge the frontiers fixed by the Constitution, can give 
to certain provinces lying within those frontiers far 
greater importance than they formerly possessed, and 
by so doing, can substantially change the character of 
the government. It cannot engender a new power, but 
it can turn an old one in a new direction, and call a 
dormant one into momentous activity. 

Next as to usage. Custom, which is a law-produc- 
ing agency in every department, is specially busy in 
matters which pertain to the practical conduct of govem- 

^ It need hardly be said that the now general recognition that the 
Constitution empowers Congress to deal with the subject does not imply 
that every detail of the Act is above objection. Although 'prvma facie 
Congress, when competent to legislate on a subject, is free to choose its 
means, still it remains open to any one to chaUenge the constitutionalitj 
of any particular provisions in a statute. 



CHAP. XXXIV DE VELOPMENT B Y USA GE 519 

ment. Understandings and conventions are in modern 
practice no less essential to the smooth working 
of the English Constitution, than are the principles 
enunciated in the Bill of Rights. Now understand- 
ings are merely long-established usages, sanctioned by 
no statute, often too vague to admit of precise state- 
ment/ yet in some instances deemed so binding that 
a breach of them would damage the character of a 
statesman or a ministry just as much as the transgression 
of a statute. In the United States there are fewer 
such understandings than in England, because under a 
Constitution drawn out in one fundamental document 
everybody is more apt to stand upon his strict legal 
rights, and the spirit of institutions departs less widely 
from their letter. Nevertheless some of those features 
of American government to which its character is chielBy 
due, and which recur most frequently in its daily work- 
ing, rest neithci: upon the Constitution nor upon any 
statute, but upon usage alone. Here are some instances. 

The presidential electors have by usage and by usage 
only lost the right the Constitution gave them of exer- 
cising their discretion in the choice of a chief magistrate. 

The President is not re-elected more than once, 
though the Constitution places no restriction whatever 
on re-eUgibility.2 

1 For instance, it is impossible to state precisely the rights of the 
House of Lords as to rejecting bills passed by the House of Commons. 
It is admitted that the Upper House must, as a matter of political 
necessity or prudence, in the long run yield to the Lower, but exactly 
how soon or under what circumstances is a matter on which no rule can 
be said to exist A notion has grown up in some quarters that the House 
of Lords may properly resist tiU a general election, but must then bow to 
the will of the voters. But this idea, which of course receives no counten- 
ance from English law, cannot be deemed to have become established by 
custom as a part of the Constitution. 

2 See ante, Chap. V. The FedercUist (No. Ixviii.) says that the 
President will be and ought to be re-elected as often as the people think 
him worthy of their confidence. 



520 THE NATIONAL GOVERNMENT parti 

The Senate now never exercises its undoubted power 
of refusing to confirm the appointments made by the 
President to cabinet oJ0&ces. 

The President is permitted to remove, without asking 
the consent of the Senate, ofl&cials to whose appointment 
the consent of the Senate is necessary. This was for a 
time regulated by statute, but the statute having been 
repealed the old usage has revived. The Constitution 
is silent on the point. 

Both the House and the Senate conduct their legis- 
lation by means of standing committees. This vital 
peculiarity of the American system of government 
has no firmer basis than the standing orders of each 
House, which can be repealed at any moment, but 
have been maintained for many -years. 

The Speaker of the House is by a similar practice 
entrusted with the nomination of all the House com- 
mittees, an arrangement which gives him an influence 
upon legislation greater than the President's. 

The chairmen of the chief committees of both Houses, 
which control the great departments of State (e.gr. foreign 
afiairs, navy, justice, finance), have practically become 
an additional set of ministers for those departments. 

The custom of going into caucus, by which the 
parties in each of the two Houses of Congress determine 
their action, and the obligation on individual members 
to obey the decision of the caucus meeting, are mere 
habits or understandings, without legal sanction. So 
is the right of the senators from a State to control the 
Federal patronage of that State, a right shaken (as 
observed in an earlier chapter) by the victory of Presi- 
dent Garfield over Mr. Conkling, but still largely 
exerted. So is the usage that appropriation bills 
shall be first presented to the House. 



CHAP. XXXIV DE VELOPMENT B Y USA GE 521 

The rule that a member of Congress must be chosen 
from the district, as well as from the State, in which he 
resides, rests on no Federal enactment ; indeed, neither 
Congress nor any State legislature would be entitled 
thus to narrow the liberty of choice which the words 
of the Constitution imply, though some State legis- 
latures have affected so to do. 

Jackson introduced, and succeeding Presidents con- 
tinued the practice of dismissingFederal oJ0&cials belonging 
to the opposite party, and appointing none but adherents 
of their own party to the vacant places. This is the so- 
called Spoils System, which, having been applied also to 
State and municipal offices, has been made the corner- 
stone of " practical politics " in America. The Constitu- 
tion is nowise answerable for it, and legislation only 
partially. 

Neither in English law nor in American is there 
anything regarding the re -eligibility of a member of 
the popular chamber; nor can it be said that usage 
has established in either country any broad general rule 
on the subject. But whereas the English tendency has 
been to re-elect a member unless there is some positive 
reason for getting rid of him, in many parts of America 
men are disposed the other way, and refuse to re-elect 
him just because he has had his turn already. Any 
one can understand what a difference this makes in the 
character of the chamber. 

We see, then, that several salient features of the 
present American government, such as the popular 
election of the President, the influence of senators 
and congressmen over patronage, the immense power 
of the Speaker, the Spoils system, are due to usages 
which have sprung up round the Constitution and 
profoundly affected its working, but which are not parts 



522 THE NATIONAL GOVERNMENT parti 

of the Constitution, nor necessarily attributable to any 
specific provision which it contains. The most remark- 
able instance of all, the choice of presidential candidates 
by the great parties assembled in their national con- 
ventions, will be fully considered in a later chapter. 

One of the changes which the last seventy years 
have brought about is so remarkable as to deserve 
special mention. The Constitution contains no pro- 
visions regarding the electoral franchise in congressional 
elections save the three following : — 

That the franchise shall in every State be the same 
as that by which the members of the " most numerous 
branch of the State legislature " are chosen (Art. i. § 2). 

That when any male citizens over twenty-one years 
of age are excluded by any State from the franchise 
(except for crime) the basis of representation in Con- 
gress of that State shall be proportionately reduced 
(Am. xiv., 1868). 

That " the right of citizens of the United States to 
vote shall not be denied or abridged on account of race, 
colour, or previous condition of servitude" (Am. xv., 
1870). 

Subject to these conditions every State may regulate 
the electoral franchise as it pleases. 

In the first days of the Constitution the suffrage was 
in nearly all States limited by various conditions (e.g. 
property qualification, length of residence, etc.) which 
excluded, or might have excluded, though in some States 
the proportion of very poor people was small, a con- 
siderable number of the free inhabitants. At present 
the suffrage is in every State practically universal. It 
had become so in the Free States ^ even before the war. 

^ Save that in many of them persons of colour were placed at a dis- 
advantage. 



CHAP. XXXIV DEVELOPMENT BY USAGE 523 

Here is an advance towards pure democracy eflfected 
without the action of the national legislature, but solely 
by the legislation of the several States, a legislation 
which, as it may be changed at any moment, is, so far 
as the national government is concerned, mere custom. 
And of this great step, modifying profoundly the 
colour and character of the government, there is no 
trace in the words of the Constitution other than the 
provisions of the fourteenth and jfifteenth amendments 
introduced for the benefit of the liberated negroes. 

It is natural, it is indeed inevitable, that there should 
be in every country such a parasitic growth of usages 
and understandings round the solid legal framework of 
government. But must not the result of such a growth 
be different where a rigid constitution exists from what 
it is in countries where, as in England, the constitution 
is flexible ? In England usages of the kind described 
become inwoven with the law of the country as settled 
by statutes and decisions, and modify that law. Cases 
come before a court in which a usage is recognized and 
thereby obtains a sort of legal sanction. Statutes are 
passed in which an existing usage is taken for granted, 
and which therefore harmonize with it. Thus the 
always changing Constitution becomes interpenetrated 
by custom. Custom is in fact the first stage through 
which a rule passes before it is embodied in binding 
law. But in America, where the fundamental law 
cannot readily be, and is in fact very rarely altered, 
may we not expect a conflict, or at least a want of 
harmony, between law and custom, due to the constant 
growth of the one and the immutability of the other ? 

In examining this point one must distinguish between 
subjects on which the Constitution is silent and subjects 
on which it speaks. As regards the former there is 



524 THE NATIONAL GOVERNMENT parti 

little difficulty. Usage and legislation may expand 
the Constitution in what way they please, subject only 
to the control of public opinion. The courts of law 
will not interfere, because no provision of the Constitu- 
tion is violated ; and even where it may be thought that 
an act of Congress or of the executive is opposed to the 
spirit of the Constitution, still if it falls within the range 
of the discretion which these authorities have received, 
it will not be questioned by the judges.^ 

If, on the other hand, either congressional legislation 
or usage begins to trench on ground which the Con- 
stitution expressly covers, the question at once arises 
whether such legislation is vaUd, or whether an act 
done in conformity with such usage is legal. Questions 
of this kind do not always come before the courts, and 
if they do not, the presumption is in favour of what- 
ever act has been done by Congress or by any legally 
constituted authority. When, however, such a ques- 
tion is susceptible of judicial determination and is 
actually brought before a tribunal, the tribunal is dis- 
posed rather to support than to treat as null the act 
done. Applying that expansive interpretation which 
has prevailed since the war as it prevailed in the days 
of Chief-Justice Marshall, the Supreme court is apt to 
find grounds for moving in the direction which it 
perceives public opinion to have taken, and for putting 
on the words of the Constitution a sense which legalizes 
what Congress has enacted or custom approved. When 
this takes place things proceed smoothly. The change 
which circumstances call for is made gently, and is con- 
trolled, perhaps modified, in its operation. 

^ " It is an axiom in our jurisprudence that an Act of Congress is not 
to be pronounced unconstitutional unless the defect of power to pass it is 
so clear as to admit of no doubt Every doubt is to be resolved in favour 
of the validity of the law.*' — Swayne, J., in TJ.S. v. Rhodes, 1 Abb. U.S. 49. 



CHAP. XXXIV DEVELOPMENT BY USAGE 525 

But sometimes the courts feel bound to declare some 
statute, or executive act done in pursuance of usage, 
contrary to the Constitution. What happens ? In 
theory the judicial determination is conclusive, and 
ought to check any further progress in the path which 
has been pronounced unconstitutional. But whether 
this result follows will in practice depend on the cir- 
cumstances of the moment. If the case is not urgent, 
if there is no strong popular impulse behind Congress 
or the President, no paramount need for the usage 
which had sprung up and is now disapproved, the 
decision of the courts will be acquiesced in ; and what- 
ever tendency towards change exists will seek some 
other channel where no constitutional obstacle bars its 
course. But if the needs of the time be pressing, courts 
and Constitution may have to give way. Salus reipuh- 
licae lex suprema. Above that supreme written law 
stands the safety of the commonwealth, which wiU be 
secured, if possible in conformity with the Constitution ; 
but if that be not possible, then by evading, or even 
by overriding the Constitution.^ This is what happened 
in the Civil War, when men said that they would break 
the Constitution in order to preserve it. 

Attempts to disobey the Constitution have been rare, 

1 In a remarkable letter written to Mr. Hodges (4th April 1864), 
President Lincoln said : " My oath to preserve the Constitution imposed 
on me the duty of preserving by every indispensable means that govern- 
ment, that nation, of which the Constitution was the organic law. Was 
it possible to lose the nation and yet preserve the Constitution ? By 
general law life and limb must be protected, yet often a limb must be 
amputated to save a life, but a life is never wisely given to save a limb. 
I felt that measures, otherwise unconstitutional, might become lawful by 
becoming indispensable to the preservation of the Constitution through 
the preservation of the nation. Eight or wrong I assumed this ground, 
and now avow it. I could not feel that to the best of my ability I had 
even tried to preserve the Constitution, if, to save slavery, or any minor 
matter, I should permit the wreck of government, country, and Constitu- 
tion altogether." 



526 THE NATIONAL GOVERNMENT parti 

because the fear of clashing with it has arrested many 
mischievous proposals in their earlier stages, while the 
influence of public opinion has averted possible collisions 
by leading the courts to lend their ultimate sanction to 
measures or usages which, had they come under review 
at their first appearance, might have been pronounced 
unconstitutional.^ That collisions have been rare is good 
evidence of the political wisdom of American statesmen 
and lawyers. But politicians in other countries will err 
if they suppose that the existence of a rigid or supreme 
constitution is enough to avert collisions, or to secure 
the victory of the fundamental instrument.^ A rigid 
constitution resembles, not some clifi" of Norwegian 
gneiss which bears for centuries unchanged the lash of 
Atlantic billows, but rather a sea-wall, such as guards 
the seaside promenade of an English town, whose 
smooth surface resists the ordinary waves and currents 
of the Channel but may be breached or washed away 
by some tremendous tempest. The American Constitu- 
tion has stood unbroken, because America has never 
seen, as some European countries have seen, angry 
multitudes or military tyrants bent on destroying the 
institutions which barred the course of their passions or 
ambition. And it has also stood because it has sub- 
mitted to a process of constant, though sometimes 
scarcely perceptible, change which has adapted it to the 
conditions of a new age. 

^ Such as the expenditure of vast sums on " internal improvements" 
and the assumption of wide powers over internal communications. 

2 Judge Cooley aptly observes : ** If the great men of 1787 had been 
living a little later they might have seen in the experience of France that 
the most carefully prepared and popular written constitution is not more 
secure than any other against sudden, violent, and destructive changes, 
and may, indeed, be more easily overturned by the assaults of faction 
than it possibly could be if its principles, having their roots deep in the 
nature of the people, were only expressed in unwritten usages." — ^Address 
to the South Carolina Bar Association. 



CHAP. XXXIV DEVELOPMENT BY USAGE 527 

The solemn determination of a people enacting a 
fundamental law by which they and their descendants 
shall be governed cannot prevent that law, however 
great the reverence they continue to profess for it, from 
being worn away in one part, enlarged in another, 
modified in a third, by the ceaseless action of influences 
playing upon the individuals who compose the people. 
Thus the American Constitution has necessarily changed 
as the nation has changed, has changed in the spirit with 
which men regard it, and therefore in its own spirit. To 
use the words of the eminent constitutional lawyer whom 
I have more than once quoted : "We may think,*' says 
Judge Cooley, " that we have the Constitution all before 
us ; but for practical purposes the Constitution is that 
which the government, in its several departments, and 
the people in the performance of their duties as citizens, 
recognize and respect as such; and nothing else is. 
. . . Cervantes says : Every one is the son of his 
own works. This is more emphatically true of an 
instrument of government than it can possibly be of a 
natural person. What it takes to itself, though at first 
unwarrantable, helps to make it over into a new instru- 
ment of government, and it represents at last the acts 
done under it." 



CHAPTER XXXV 

THE RESULTS OF CONSTITUTIONAL DEVELOPMENT 

We have seen that the American Constitution has 
changed, is changing, and by the law of its existence 
must continue to change, in its substance and practical 
working even when its words remain the same. " Time 
and habit," said Washington, " are at least as necessary 
to fix the true character of governments as of other 
human institutions : " ^ and while habit fixes some things, 
time remoulds others. 

It remains to ask what has been the general result of 
the changes it has suffered, and what light an examination 
of its history, in this respect, throws upon the probable 
future of the instrument and on the worth of Eigid or 
Supreme constitutions in general. 

The Constitution was avowedly created as an instru- 
ment of checks and balances. Each branch of the 
National government was to restrain the others, and 
maintain the equipoise of the whole. The legislature 
was to balance the executive, and the judiciary both. 
The two houses of the legislature were to balance one 
another. The National government, taking all its 
branches together, was balanced against the State 
governments. As this equilibrium was placed under the 
protection of a document, unchangeable save by the 

^ Farewell Address, 17tli September 1796. 



CHAP. XXXV RESULTS OF DEVELOPMENT 529 

people themselves, no one of the branches of the 
National government has been able to absorb or override 
the others, as the House of Commons and the Cabinet, 
itself a child of the House of Commons, have in England 
overridden and subjected the Crown and the House of 
Lords. Eax^h branch maintains its independence, and 
can, within certain Hmits, defy the others. 

But there is among political bodies and ojB&ces 
(i.e. the persons who from time to time fill the same 
ofl&ce) of necessity a constant strife, a struggle for 
existence similar to that which Mr. Darwin has shown 
to exist among plants and animals ; and as in the case 
of plants and animals so also in the political sphere 
this struggle stimulates each body or office to exert its 
utmost force for its own preservation, and to develop 
its aptitudes in any direction wherein development 
is possible. Each branch of the American govern- 
ment has striven to extend its range and its powers ; 
each has advanced in certain directions, but in others 
has been restrained by the equal or stronger pressure 
of other branches. I shall attemp